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OMMENTARIES  ^ 

■    '         sa 


CONSTITUTION  OF  THE  UNITED  STATES: 


WITH 


A  PRELIMINARY  REVIEW  OF  THE  CONSTITUTIONAL  HISTORY 

OF  THE  COLONIES  AND   STATES  BEFORE  THE 

ADOPTION  OF  THE  CONSTITUTION. 


JOSEPH   STORY,  LL.D. 

IN    TWO    VOLUMES. 

VOL.  I. 

I 

FOURTH  EDITION,  WITH  NOTES  AND  ADDITIONS 
By  THOMAS  M.  COOLEY. 


Magistratibus  igitur  opus  est ;  sine  quorum  prudentiSl  ac  diligentiSl  esse  civitas  non  potest ; 
quorumque  descriptione  omnis  Reipublicae  moderatio  continetur." 

Cicero,  De  Leg.,  lib.  3,  cap.  2. 

*'  Qovenunent  is  a  contrivance  of  human  wisdom  to  provide  for  human  wants." 

Burks. 


BOSTON:  y^i 

LITTLE,    BROWN,    AND    COMPANY. 
1873. 


Mi 


Entered  according  to  the  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 
thirty-three,  by  Joseph  Story,  in  the  Clerk's  Office  of  the  District  Court  of  the  District 
of  Massachusetts. 

Entered  according  to  the  Act  of  Congress,  in  year  1851,  by  William  W.  Story,  in  the 
Cleric's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1858,  by  William  W.  Story,  in  the 
Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1873,  by  William  W.  Story,  in  the 
Office  of  the  Librarian  of  Congress,  at  Washington. 


Univhs".ity  Press  :  Welch,  Bigelow,  &  Co., 
Cambridge. 


TO  THE 


HONOKABLE  JOHN  MAESHALL,  LL.D., 


CHIEF  JUSTICE   OF   THE    UNITED   STATES   OF   AMEBICA. 

Sm, 

I  ASK  the  favor  of  dedicating  this  work  to  you.  I  know  not  to  whom  it 
could  with  so  much  propriety  be  dedicated  as  to  one  whose  youth  was 
engaged  in  the  arduous  enterprises  of  the  Revolution,  whose  manhood 
assisted  in  framing  and  supporting  the  national  Constitution,  and  whose 
maturer  years  have  been  devoted  to  the  task  of  unfolding  its  powers  and 
illustrating  its  principles.  When,  indeed,  I  look  back  upon  your  judicial 
labors  during  a  period  of  thirty-two  years,  it  is  difficult  to  suppress  aston- 
ishment at  their  extent  and  variety,  and  at  the  exact  learning,  the  pro- 
found reasoning,  and  the  solid  principles  which  they  everywhere  display. 
Other  judges  have  attained  an  elevated  reputation  by  similar  labors,  in  a 
single  department  of  jurisprudence.  But  in  one  department,  (it  need 
scarcely  be  said  that  I  allude  to  that  of  constitutional  law,)  the  common 
consent  of  your  countrymen  has  admitted  you  to  stand  without  a  rival. 
Posterity  will  assuredly  confirm,  by  its  deliberate  award,  what  the  present 
age  has  approved  as  an  act  of  undisputed  justice.  Your  expositions  of 
constitutional  law  enjoy  a  rare  and  extraordinary  authority.  They  consti- 
tute a  monument  of  fame  far  beyond  the  ordinary  memorials  of  political 
and  military  glory.  They  are  destined  to  enlighten,  instruct,  and  convince 
future  generations,  and  can  scarcely  perish  but  with  the  memory  of  the 
Constitution  itself.  They  are  the  victories  of  a  mind  accustomed  to  grapple 
with  difficulties,  capable  of  unfolding  the  most  comprehensive  truths  with 
masculine  simplicity  and  severe  logic,  and  prompt  to  dissipate  the  illusions 
of  ingenious  doubt  and  subtle  argument  and  impassioned  eloquence. 
They  remind  us  of  some  mighty  river  of  our  own  country,  which,  gathering 
in  its  course  the  contributions  of  many  tributary  streams,  pours  at  last  its 
own  current  into  the  ocean,  deep,  clear,  and  irresistible. 

But  I  confess  that  I  dwell  with  even  more  pleasure  upon  the  entirety 
of  a  life  adorned  by  consistent  principles,  and  filled  up  in  the  discharge  of 
virtuous  duty ;  where  there  is  nothing  to  regret,  and  nothing  to  conceal ; 
no  friendships   broken;  no  confidence  betrayed;  no  timid  surrenders  to 


IV  DEDICATION. 

popular  clamor  ;  no  eager  reaches  for  popular  favor.  Who  does  not  listen 
with  conscious  pride  to  the  truth,  that  the  disciple,  the  friend,  the  biographer 
of  Washington  still  lives,  the  uncompromising  advocate  of  his  principles  ? 

I  am  but  too  sensible  that,  to  some  minds,  the  time  may  not  seem  yet  to 
have  arrived  when  language  like  this,  however  true,  should  meet  the  eyes 
of  the  public.  May  the  period  be  yet  far  distant  when  praise  shall  speak 
out  with  that  fulness  of  utterance  which  belongs  to  the  sanctity  of  the 
grave. 

But  I  know  not  that,  in  the  course  of  Providence,  the  privilege  will  be 
allowed  me  hereafter  to  declare,  in  any  suitable  form,  my  deep  sense  of 
the  obligations  which  the  jurisprudence  of  my  country  owes  to  your  labors, 
of  which  I  have  been  for  twenty-one  years  a  witness,  and  in  some  humble 
measure  a  companion.  And  if  any  apology  should  be  required  for  my 
present  freedom,  may  I  not  say  that,  at  your  age,  all  reserve  may  well  be 
spared,  since  all  your  labors  must  soon  belong  exclusively  to  history  ? 

Allow  me  to  add,  that  I  have  a  desire  (will  it  be  deemed  presump- 
tuous ?)  to  record  upon  these  pages  the  memory  of  a  friendship  which  has 
for  so  many  years  been  to  me  a  source  of  inexpressible  satisfaction  ;  and 
which,  I  indulge  the  hope,  may  continue  to  accompany  and  cheer  me  to 
the  close  of  life. 

I  am,  with  the  highest  respect, 

Affectionately  your  servant, 

JOSEPH  STORY. 
Cambridge,  January,  1833. 


EDITOR'S    PREFACE 


TO  THE  FOURTH  EDITION. 


In  preparing  for  the  press  a  fourth  edition  of  Mr.  Jus- 
tice Story's  Commentaries  on  the  Constitution,  it  has  been 
thought  proper  to  preserve  the  original  text  without  al- 
teration or  interpolation,  and  to  put  into  notes  all  discus- 
sions by  the  editor,  as  well  as  all  references  to  subsequent 
adjudications,  public  papers,  and  events,  tending  to  illus- 
trate, support,  or  qualify  the  positions  assumed  in  the 
text.  The  new  amendments,  however,  seemed  to  demand 
treatment  in  the  body  of  the  work,  and  additional  chap- 
ters are  given  for  that  purpose.  In  preparing  them,  the 
editor  has  not  been  ambitious  to  enter  upon  original  dis- 
cussions, or  to  advance  peculiar  views ;  and  he  has  con- 
tented himself  with  a  brief  commentary  on  the  provisions 
and  purposes  of  the  amendments,  aiming,  as  far  as  possi- 
ble, to  keep  in  harmony  with  the  opinions  and  sentiments 
under  the  inspiration  of  which  they  were  accepted  and 
ratified  in  the  several  States.  So  far  as  it  was  possible  to 
derive  assistance  from  adjudicated  cases,  he  has  sought  to 
do  so,  but  he  has  carefully  abstained  from  the  expression 
of  partisan  views  on  disputed  points,  and  he  has  not  in 
general  deemed  it  necessary  to  anticipate  the  judgment  of 
the  country  upon  any  such  decisions  of  inferior  federal 


VI  EDITOR'S  PREFACE. 

courts  as  might  seem  to  him  chargeable  to  the  disorders 
and  excitements  of  the  times,  and  to  be  unwarranted  by 
the  Constitution.  In  the  main,  therefore,  such  decisions 
have  been  passed  over  by  him  without  notice. 

The  liberty  has  been  taken  in  this  edition  to  retain  the 
benefit  of  a  portion  of  Judge  Bennett's  labors  upon  the 
last,  but  credit  is  in  all  cases  given  by  adding  his  initials. 
Notes  by  the  editors  are  distinguished  from  those  of  the 
author  by  being  included  in  brackets. 

University  op  Michigan,  Ann  Abbob,  1873. 


PREFACE. 


I  NOW  offer  to  the  public  another  portion  of  the  labors  devolved  on  me 
in  the  execution  of  the  duties  of  the  Dane  Professorship  of  Law  in  Har- 
vard University.  The  importance  of  the  subject  will  hardly  be  doubted 
by  any  persons  who  have  been  accustomed  to  deep  reflection  upon  the 
nature  and  value  of  the  Constitution  of  the  United  States.  I  can  only 
regret  that  it  has  not  fallen  into  abler  hands,  with  more  leisure  to  prepare, 
and  more  various  knowledge  to  bring  to  such  a  task. 

Imperfect,  however,  as  these  Commentaries  may  seem  to  those  who  are 
accustomed  to  demand  a  perfect  finish  in  all  elementary  works,  they  have 
been  attended  with  a  degree  of  uninviting  labor  and  dry  research,  of 
which  it  is  scarcely  possible  for  the  general  reader  to  form  any  adequate 
estimate.  Many  of  the  materials  lay  loose  and  scattered,  and  were  to  be 
gathered  up  among  pamphlets  and  discussions  of  a  temporary  charac- 
ter; among  obscure  private  and  public  documents;  and  from  collections 
which  required  an  exhausting  diligence  to  master  their  contents,  or  to 
select  from  important  masses  a  few  facts  or  a  solitary  argument.  Indeed, 
it  required  no  small  labor,  even  after  these  sources  were  explored,  to 
bring  together  the  irregular  fragments,  and  to  form  them  into  groups  in 
which  they  might  illustrate  and  support  each  other. 

From  two  great  sources,  however,  I  have  drawn  by  far  the  greatest 
part  of  my  most  valuable  materials.  These  are,  The  Federalist,  an  in- 
comparable commentary  of  three  of  the  greatest  statesmen  of  their  age, 
and  the  extraordinary  Judgments  of  Mr.  Chief  Justice  Marshall  upon  con- 
stitutional law.  The  former  have  discussed  the  structure  and  organization 
of  the  national  government,  in  all  its  departments,  with  admirable  fulness 
and  force.     The  latter  has  expounded  the  application  and  limits  of  its 


viii  PREFAOB. 

powers  and  functions  with  unrivalled  profoundness  and  felicity.  The 
Federalist  could  do  little  more  than  state  the  objects  and  general  bearing 
of  these  powers  and  functions.  The  masterly  reasoning  of  the  Chief  Jus- 
tice has  followed  them  out  to  their  ultimate  results  and  boundaries  with  a 
precision  and  clearness  approaching,  as  near  as  may  be,  to  mathematical 
demonstration.  The  Federalist,  being  written  to  meet  the  most  prevalent 
popular  objections  at  the  time  of  the  adoption  of  the  Constitution,  has  not 
attempted  to  pursue  any  very  exact  order  in  its  reasonings,  but  has  taken 
up  subjects  in  such  a  manner  as  was  best  adapted  at  the  time  to  overcome 
prejudices  and  win  favor.  Topics,  therefore,  having  a  natural  connection 
are  sometimes  separated ;  and  illustrations,  appropriate  to  several  important 
points,  are  sometimes  presented  in  an  incidental  discussion.  I  have  trans- 
ferred into  my  own  pages  all  which  seemed  to  be  of  permanent  importance 
in  that  great  work,  and  have  thereby  endeavored  to  make  its  merits  more 
generally  known. 

The  reader  must  not  expect  to  find  in  these  pages  any  novel  views  and 
novel  constructions  of  the  Constitution.  I  have  not  the  ambition  to  be  the 
author  of  any  new  plan  of  interpreting  the  theory  of  the  Constitution,  or  of 
enlarging  or  narrowing  its  powers  by  ingenious  subtilties  and  learned 
doubts.  My  object  will  be  sufiiciently  attained,  if  I  shall  have  succeeded 
in  bringing  before  the  reader  the  true  view  of  its  powers,  maintained  by 
its  founders  and  friends,  and  confirmed  and  illustrated  by  the  actual  prac- 
tice of  the  government.  The  expositions  to  be  found  in  the  work  are  less 
to  be  regarded  as  my  own  opinions  than  as  those  of  the  great  minds  which 
framed  the  Constitution,  or  which  have  been  from  time  to  time  called  upon 
to  administer  it.  Upon  subjects  of  government,  it  has  always  appeared  to 
me  that  metaphysical  refinements  are  out  of  place.  A  constitution  of  gov- 
ernment is  addressed  to  the  common-sense  of  the  people ;  and  never  was 
designed  for  trials  of  logical  skill  or  visionary  speculation. 

The  reader  will  sometimes  find  the  same  train  of  reasoning  brought 
before  him  in  different  parts  of  these  Commentaries.  It  was  indispensable 
to  do  so,  unless  the  discussion  was  left  imperfect,  or  the  reader  was  referred 
back  to  other  pages,  to  gather  up  and  combine  disjointed  portions  of  rea- 
soning. In  cases  which  have  undergone  judicial  investigation,  or  which 
concern  the  judicial  department,  I  have  felt  myself  restricted  to  more 
narrow  discussions  than  in  the  rest  of  the  work ;  and  have  sometimes 


PREFACE.  ix 

contented  myself  with  a  mere  transcript  from  the  judgments  of  the  court. 
It  may  readily  be  understood  that  this  course  has  been  adopted  from  a 
solicitude  not  to  go  incidentally  beyond  the  line  pointed  out  by  the  authori- 
ties. 

In  dismissing  the  work,  I  cannot  but  solicit  the  indulgence  of  the  public 
for  its  omissions  and  deficiencies.  With  more  copious  materials,  it  might 
have  been  made  more  exact,  as  well  as  more  satisfactory.  With  more 
leisure  and  more  learning,  it  might  have  been  wrought  up  more  in  the 
spirit  of  political  philosophy.  Such  as  it  is,  it  may  not  be  wholly  useless 
as  a  means  of  stimulating  abler  minds  to  a  more  thorough  review  of  the 
whole  subject,  and  of  impressing  upon  Americans  a  reverential  attachment 
to  the  Constitution,  as  in  the  highest  sense  the  palladium  of  American  lib- 
erty. 

January,  1833. 


TABLE   OF   CONTENTS. 


The  Constitution xviii 

Preliminary  Chapter .1 


BOOK    I 

history  of  the  colonies. 
CHAPTER  I. 

Section 

Origin  and  Title  to  the  Territory  of  the  Colonies.  .        .         .1-39 

CHAPTER  n. 
Origin  and  Settlement  of  Virginia 39-52 

CHAPTER  in. 
Origin  and  Settlement  of  New  England  and  Plymouth  Colony     .    52-61 

CHAPTER  IV. 
Massachusetts 61-78 

CHAPTER  V. 
New  Hampshire 78-82 

CHAPTER  VI. 
Maine 82-84 

CHAPTER  VII. 
Connecticut 84-94 

CHAPTER  VIII. 
Rhode  Island    . 94-103 


XU  CONTENTS. 

CHAPTER  IX. 
Maryland 103-111 

CHAPTER  X. 
New  York 111-115 

CHAPTER  XI. 
New  Jersey 115-121 

CHAPTER  XII. 
Pennsylvania .     121-126 

CHAPTER  XHI. 
Delaware .         .        .         .126-128 

CHAPTER  XIV. 
North  and  South  Carolina 128-143 

CHAPTER  XV. 
Georgia 143-146 

CHAPTER  XVI. 
General  Review  of  the  Colonies 146-159 

CHAPTER  XVH. 
The  Same 159-198 


BOOK    II 

HISTORY   OF   THE   REVOLUTION   AND    THE    CONFEDERATION. 

CHAPTER  I. 

The  History  of  the  Revolution 198-218 

CHAPTER  II. 
Origin  of  the  Confederation 2li8  -  229 


CONTENTS.  Xlll 

CHAPTER  III. 

Analysis  of  the  Articles  of  the  Confederation  ....     229  -  243 

CHAPTER  IV. 
Decline  and  Fall  of  the  Confederation 243-272 

BOOK    III. 

THE    CONSTITUTION    OF    THE    UNITED    STATES. 

CHAPTER  I. 
Origin  and  Adoption  of  the  Constitution  ....     272  -  281 

CHAPTER  ir. 
Objections  to  the  Constitution 281-306 

CHAPTER  HI. 

Nature  of  the  Constitution  —  whether  a  Compact    .         .         .     306-373 

CHAPTER  IV. 

Who  is  the  final  Judge,  or  Interpreter,  in  Constitutional  Con- 
troversies   373-397 

CHAPTER  V. 
Rules  of  Interpretation  of  the  Constitution      ....     397  -  457 

CHAPTER  VI. 
The  Preamble .         .457-518 

CHAPTER  VII. 
Distribution  of  Powers 518-545 

CHAPTER  VIII. 
The  Legislature 545-571 

CHAPTER  IX. 
The  House  of  Representatives 571-690 

CHAPTER  X. 
The  Senate 690-814 


XIV  CONTENTS. 

CHAPTER  XL 

Elections  and  Meetings  of  Congress     .        .        .        .  ^     .         814-837 

CHAPTER  XII. 

Privileges  and  Powers  of  both  Houses  of  Congress      .         .         837  -  873 

CHAPTER  XIII. 

Mode  of  Passing  Laws  —  President's  Negative   .         .         .         873  -  905 

CHAPTER  XIV. 
Powers  of  Congress  —  Taxes 905-1054 

CHAPTER  XV. 

Power  to  borrow  Money  and  regulate  Commerce  .         .     1054-1102 

CHAPTER  XVL 

Power  over  Naturalization  and  Bankruptcy         .         .         .     1102-1116 

CHAPTER  XVIL 

Power  to  coin  Money,  and  fix  the  Standard  of  Weights  and 

Measures 1116-1124 

CHAPTER  XVIIL 

Power  to  establish  Post-Offices  and  Post-Roads  .         .         .     1124-1151 

CHAPTER  XIX. 

Power  to  promote  Science  and  Useful  Arts         .         .         .     1151-1157 

CHAPTER  XX. 

Power  to  punish  Piracies  and  Felonies  on  the  High  Seas     .     1157-1168 

CHAPTER  XXL 

Power  to  declare    War   and    make    Captures  —  Army  — 

Navy 1168-1199 

CHAPTER  XXH. 

Power  over  the  Militia 1199-1216 

CHAPTER  XXIIL 

Power  over  Seat  of  Government  and  other  ceded  Places      .     1216-1236 

CHAPTER  XXIV. 

Powers  of  Congress  —  Incidental  ....     1236-1259 


CONTENTS.  XV 

CHAPTER  XXV. 
Powers  of  Congress  —  National  Bank        ....     1259-1272 

CHAPTER  XXVI. 

Powers  of  Congress  —  Internal  Improvements     .         .         .     1272-1282 

CHAPTER  XXVII. 

Powers  of  Congress  —  Purchases  of  Foreign  Territory  — 

Embargoes 1282-1295 

CHAPTER  XXVIII. 
Power  of  Congress  to  punish  Treason  ....     1295-1302 

CHAPTER  XXIX. 

Power  of  Congress  as  to  Proof  of  State  Records  and  Pro- 
ceedings      1302-1314 


'o- 


CHAPTER  XXX. 

Powers  of  Congress  —  Admission  of  New  States,  and  Acqui- 
sition of  Territory 1314-1322 

CHAPTER  XXXI. 

Powers  of  Congress  —  Territorial  Governments  .         .     1322-1331 

CHAPTER  XXXII. 

Prohibitions  on  the  United  States        .....     1331-1353 

CHAPTER  XXXIII. 
Prohibitions  on  the  States 1353-1374 

CHAPTER  XXXIV. 

Prohibitions  on  the  States  —  Impairing  Contracts         .         .     1374-1401 

CHAPTER  XXXV. 

Prohibitions  on  the  States  —  Tonnage  Duties  —  Making  War  1401-1410 

CHAPTER  XXXVI. 

Executive  Department  —  Organization  of  .         .         .         .     1410-1489 


XVI  CONTENTS. 

CHAPTER  XXXVII. 
Executive  —  Powers  and  Duties 1489-1573 

CHAPTER  XXXVIII. 
The  Judiciary  —  Importance  and  Powers  of        .         .         .     1573-1796 

CHAPTER  XXXIX. 
Definition  and  Evidence  of  Treason 1796-1804 

CHAPTER  XL. 

Privileges  of  Citizens  —  Fugitives — Slaves        .         .         .     1804-1813 

CHAPTER  XLI. 

Guaranty  of  Republican  Grovernment  —  Mode  of  Making 
Amendments 1813-1832 

CHAPTER  XLII. 
Public  Debts  —  Supremacy  of  Constitution  and  Laws  .     1832  - 1843 

CHAPTER  XLIIL 

Oaths   of    Office  —  Religious    Test  —  Ratification  of  the 

Constitution 1843-1857 

CHAPTER  XLIV. 
Amendments  to  the  Constitution 1857-1910 

CHAPTER  XLV. 
Concluding  Remarks 1910-1915 

CHAPTER  XLVL 

The  Emancipation  of  the  Slaves 1915-1929 

CHAPTER  XLVIL 
The  Fourteenth  Amendment 1929  -  1969 

CHAPTER  XLVIIL 

Impartial  Suffrage  —  Concluding  Remarks  .         .         .     1969-1975 


CONSTITUTIOIf 


07 


THE    UNITED    STATES    OF   AMERICA 


We,  the  people  of  the  United  States,  in  order  to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquillity,  provide  for  the  com- 
mon defence,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish  this  Consti- 
tution for  the  United  States  of  America. 

ARTICLE  I. 

Section  1. 

1.  All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of 
the  United  States,  which  shall  consist  of  a  Senate  and  House  of  Representa- 
tives. 

Section  2. 

1.  The  House  of  Representatives  shall  be  composed  of  members  chosen 
every  second  year  by  the  people  of  the  several  States,  and  the  electors  in 
each  State  shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  "of  the  State  legislature. 

2.  No  person  shall  be  a  representative  who  shall  not  have  attained  to 
the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to  their 
respective  numbers,  which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  service  for  a  term  of 

VOL.  I.  b 


XVm  THE  CONSTITUTION. 

years,  and  excluding  Indians  not  taxed,  three  fifths  of  all  other  persons. 
The  actual  enumeration  shall  be  made  within  three  years  after  the  first 
meeting  of  the  Congress  of  the  United  States,  and  within  every  subsequent 
term  of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The  num- 
ber of  representatives  shall  not  exceed  one  for  every  thirty  thousand,  but 
each  State  shall  have  at  least  one  representative  ;  and,  until  such  enumera- 
tion shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Providence  Plantations  one, 
Connecticut  five.  New  York  six.  New  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten.  North  Carolina  five,  South 
Carolina  five,  and  Georgia  three. 

4.  When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

5.  The  House  of  Representatives  shall  choose  their  speaker  and  other 
officers,  and  shall  have  the  sole  power  of  impeachment. 

Section  3. 

1.  The  Senate  of  the  United  States  shall  be  composed  of  two  senators 
from  each  State,  chosen  by  the  legislature  thereof,  for  six  years  ;  and  each 
senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled,  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three  classes. 
The  seats  of  the  senators  of  the  first  class  shall  be  vacated  at  the  expiration 
of  the  second  year,  of  the  second  class  at  the  expiration  of  the  fourth  year, 
and  of  the  third  class  at  the  expiration  of  the  sixth  year,  so  that  one  third 
may  be  chosen  every  second  year ;  and  if  vacancies  happen,  by  resignation 
or  otherwise,  during  the  recess  of  the  legislature  of  any  State,  the  executive 
thereof  may  make  temporary  appointments,  until  the  next  meeting  of  the 
legislature,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  to  the  age 
of  thirty  years,  and  been  nine  years  a  citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  for  which  he 
shall  be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be  president  of  the  Sen- 
ate, but  shall  have  no  vote  unless  they  be  equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a  president  pro 
tempore^  in  the  absence  of  the  Vice-President,  or  when  he  shall  exercise  the 
office  of  President  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  impeachments.  When 
sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation.  When  the 
President  of  the  United  States  is  tried,  the  chief  justice  shall  preside ;  and 


THE  CONSTITUTION.  xix 

no  person  shall  be  convicted  without  the  concurrence  of  two  thirds  of  the 
members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to 
removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office,  of 
honor,  trust,  or  profit,  under  the  United  States ;  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment,  according  to  law. 

Section  4. 

1.  The  times,  places,  and  manner  of  holding  elections  for  senators  and 
representatives  shall  be  prescribed  in  each  State  by  the  legislature  thereof; 
but  the  Congress  may  at  any  time,  by  law,  make  or  alter  such  regulations, 
except  as  to  the  places  of  choosing  senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall  by 
law  appoint  a  different  day. 

Section  5. 

1.  Each  house  shall  be  the  judge  of  the  elections,  returns,  and  qualifica- 
tions of  its  own  members,  and  a  majority  of  each  shall  constitute  a  quorum 
to  do  business ;  but  a  smaller  number  may  adjourn  from  day  to  day,  and 
may  be  authorized  to  compel  the  attendance  of  absent  members,  in  such 
manner,  and  under  such  penalties,  as  each  house  may  provide. 

2.  Each  house  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the  concurrence  of  two  thirds, 
expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  parts  as  may,  in  their  judgment,  re- 
quire secrecy ;  and  the  yeas  and  nays  of  the  members  of  either  house  on 
any  question  shall,  at  the  desire  of  one  fifth  of  those  present,  be  entered  on 
the  journal. 

4.  Neither  house,  during  the  session  of  Congress,  shall,  without  the  con- 
sent of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  place 
than  that  in  which  the  two  houses  shall  be  sitting. 

Section  6. 

1.  The  senators  and  representatives  shall  receive  a  compensation  for 
their  services,  to  be  ascertained  by  law,  and  paid  out  of  the  treasury  of  the 
United  States.  They  shall,  in  all  cases,  except  treason,  felony,  and  breach 
of  the  peace,  be  privileged  from  arrest  during  their  attendance  at  the  ses- 
sion of  their  respective  houses,  and  in  going  to  and  returning  from  the 


XX  THE  CONSTITUTION. 

same  ;  and  for  any  speech  or  debate  in  either  house  they  shall  not  be  ques- 
tioned in  any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  oflSce  under  the  authority  of  the  United 
States,  which  shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time ;  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house  during  his 
continuance  in  office. 

Section  7. 

1.  All  bills  for  raising  revenue  shall  originate  in  the  House  of  Represent- 
atives ;  but  the  Senate  may  propose  or  concur  with  amendments,  as  on  other 
bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate  shall^  before  it  become  a  law,  be  presented  to  the  President  of 
the  United  States  ;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return 
it,  with  his  objections,  to  that  house  in  which  it  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their  journal,  and  proceed  to  recon- 
sider it.  If,  after  such  reconsideration,  two  thirds  of  that  house  shall  agree 
to  pass  the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and,  if  approved  by  two 
thirds  of  that  house,  it  shall  become  a  law.  But  in  all  such  cases  the  votes 
of  both  houses  shall  be  determined  by  yeas  and  nays,  and  the  names  of  the 
persons  voting  for  and  against  the  bill  shall  be  entered  on  the  journal  of 
each  house  respectively.  If  any  bill  shall  not  be  returned  by  the  Presi- 
dent within  ten  days  (Sundays  excepted)  after  it  shall  have  been  presented 
to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  un- 
less the  Congress,  by  their  adjournment,  prevent  its  return,  in  which  case 
it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  concurrence  of  the  Sen- 
ate and  House  of  Representatives  may  be  necessary,  (except  on  a  question 
of  adjournment,)  shall  be  presented  to  the  President  of  the  United  States  ; 
and,  before  the  same  shall  take  effisct,  shall  be  approved  by  him,  or,  being 
disapproved  by  him,  shall  be  repassed  by  two  thirds  of  the  Senate  and  House 
of  Representatives,  according  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill. 

Section  8. 

The  Congress  shall  have  power,  — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare  of  the 
United  States;  but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States : 


THE   CONSTITUTION.  XXi 

2.  To  borrow  money  on  the  credit  of  the  United  States : 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the  several 
.  States,  and  with  the  Indian  tribes : 

4.  To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies,  throughout  the  United  States: 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures : 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States : 

7.  To  establish  post-offices  and  post-roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  securing,  for 
limited  times,  to  authors  and  inventors  the  exclusive  right  to  their  respec- 
tive writings  and  discoveries : 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court : 

10.  To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations  : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water  : 

12.  To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years  : 

13.  To  provide  and  maintain  a  navy  : 

14.  To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces : 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions  : 

16.  To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  States  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress : 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such 
district,  (not  exceeding  ten  miles  square,)  as  may,  by  cession  of  particular 
States,  and  the  acceptance  of  Congress,  become  the  seat  of  the  government 
of  the  United  States,  and  to  exercise  Mke  authority  over  all  places  purchased 
by  the  consent  of  the  legislature  of  the  State  in  which  the  same  shall  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other  needful 
buildings :  —  And 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in  any  department 
or  officer  thereof. 


XXll  THE  CONSTITUTION. 

Section  9. 

1.  The  migration  or  importation  of  such  persons  as  any  of  the  States 
now  existing  shall  think  proper  to  admit  shall  not  be  prohibited  by  the 
Congress  prior  to  the  year  one  thousand  eight  hundred  and  eight,  but  a  tax 
or  duty  may  be  imposed  on  such  importation,  not  exceeding  ten  dollars  for 
each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may  re- 
quire it. 

3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

4.  No  capitation,  or  other  direct  tax  shall  be  laid,  unless  in  proportion 
to  the  census,  or  enumeration  hereinbefore  directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State.  No 
preference  shall  be  given,  by  any  regulation  of  commerce  or  revenue,  to 
the  ports  of  one  State  over  those  of  another ;  nor  shall  vessels  bound  to  or 
from  one  State  be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law ;  and  a  regular  statement  and  account  of  the 
receipts  and  expenditures  of  all  public  money  shall  be  published  from  time 
to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  Suites  :  And  no 
person  holding  any  office  of  profit  or  trust  under  them  shall,  without  the 
consent  of  the  Congress,  accept  of  any  present,  emolument,  office,  or  title  of 
any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Section  10. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confederation  ;  grant 
letters  of  marque  and  reprisal ;  coin  money ;  emit  bills  of  credit ;  make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts ;  pass  any 
bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obligation  of  con- 
tracts, or  grant  any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  laws ;  and  the  net  produce  of  all  duties  and 
imposts,  laid  by  any  State  on  imports  or  exports,  shall  be  for  the  use  of  the 
treasury  of  the  United  States ;  and  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  the  Congress.  No  State  shall,  without  the  consent 
of  Congress,  lay  any  duty  of  tonnage,  keep  troops,  or  ships  of  war,  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  another  State,  or  with 
a  foreign  power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  im- 
minent danger  as  will  not  admit  of  delay. 


THE   CONSTITUTION.  Xxiii 

ARTICLE  11. 

Section  1. 

1.  The  executive  power  shall  be  vested  in  a  President  of  the  United 
States  of  America.  He  shall  hold  his  office  during  the  term  of  four  years, 
and,  together  with  the  Vice-President,  chosen  for  the  same  term,  be  elected 
as  follows :  — 

2.  Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof 
may  direct,  a  number  of  electors  equal  to  the  whole  number  of  senators  and 
representatives  to  which  the  State  may  be  entitled  in  the  Congress ;  but  no 
senator  or  representative,  or  person  holding  an  office  of  trust  or  profit  under 
the  United  States,  shall  be  appointed  an  elector. 

3.  The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot 
for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves.  And  they  shall  make  a  list  of  all  the  persons 
voted  for,  and  of  the  number  of  votes  for  each  ;  which  list  they  shall  sign 
and  certify,  and  transmit,  sealed,  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  president  of  the  Senate.  Tlie  president  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall  then  be  counted.  The  person 
having  the  greatest  number  of  votes  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  electors  appointed ;  and  if  there  be 
more  than  one  who  have  such  majority,  and  have  an  equal  number  of 
votes,  then  the  House  of  Representatives  shall  immediately  choose  by  ballot 
one  of  them  for  President ;  and  if  no  person  have  a  majority,  then,  from 
the  five  highest  on  the  list  the  said  House  shall  in  like  manner  choose  the 
President.  But  in  choosing  the  President  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two  thirds  of  the 
States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a  choice.  In 
every  case,  after  the  choice  of  the  President,  the  person  having  the  greatest 
number  of  votes  of  the  electors  shall  \>e  the  Vice-President.  But  if  there 
should  remain  two  or  more  who  have  equal  votes,  the  Senate  shall  choose 
from  them  by  ballot  the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing  the  electors,  and 
the  day  on  which  they  shall  give  their  votes ;  which  day  shall  be  the  same 
throughout  the  United  States. 

5.  No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible  to 
the  office  of  President  ;  neither  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and  been  four- 
teen years  a  resident  within  the  United  States. 


XXIV  THE  CONSTITUTION. 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice-President,  and  the  Congress  may 
by  law  provide  for  the  case  of  removal,  death,  resignation,  or  inability,  both 
of  the  President  and  Vice-President,  declaring  what  officer  shall  then  act 
as  President,  and  such  officer  shall  act  accordingly,  until  the.  disability  be 
removed,  or  a  President  shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his  services  a  com- 
pensation, which  shall  neither  be  increased  nor  diminished  during  the  peri- 
od for  which  he  shall  have  been  elected,  and  he  shall  not  receive  within 
that  period  any  other  emolument  from  the  United  States  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  fol- 
lowing oath  or  affirmation : 

9.  "  I  do  solemnly  swear,  (or  affirm,)  that  I  will  faithfully  execute  the 
office  of  President  of  the  United  States,  and  will,  to  the  best  of  my  ability, 
preserve,  protect,  and  defend  the  Constitution  of  the  United  States." 

Section  2. 

1.  The  President  shall  be  commander-in-chief  of  the  army  and  navy  of 
the  United  States,  and  of  the  militia  of  the  several  States,  when  called  into 
the  actual  service  of  the  United  States ;  he  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive  departments,  upon 
any  subject  relating  to  the  duties  of  their  respective  offices,  and  he  shall 
have  power  to  grant  reprieves  and  pardons  for  offisnces  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Sen- 
ate, to  make  treaties,  provided  two  thirds  of  the  senators  present  concur ; 
and  he  shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  Sen- 
ate shall  appoint  ambassadors,  other  public  ministers  and  consuls,  judges 
of  the  Supreme  Court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  law ;  but  the  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers  as  they  think  proper  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies  that  may  hap- 
pen during  the  recess  of  the  Senate,  by  granting  commissions,  which  shall 
expire  at  the  end  of  their  next  session. 

Section  3. 

1.  He  shall  from  time  to  time  give  to  the  Congress  information  of  the 
state  of  the  Union,  and  recommend  to  their  consideration  such  measures 


THE  CONSTITUTION.  XXV 

as  he  shall  judge  necessary  and  expedient ;  he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  .hem,  and  in  case  of  disa- 
greement between  them  with  respect  to  the  titae  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  shall  think  proper;  he  shall  receive 
ambassadors  and  other  public  ministers ;  he  shall  take  care  that  the  laws 
be  faithfully  executed,  and  shall  commission  all  the  officers  of  the  United 
States. 

Section  4. 

1.  The  President,  Vice-President,  and  all  civil  officers  of  the  United 
States  shall  be  removed  from  office  on  impeachment  for,  and  conviction  of, 
treason,  bribery,  or  other  high  crimes  and  misdemeanors. 


ARTICLE  III. 

Section  1. 

1.  The  judicial  power  of  the  United  States  shall  be  vested  in  one  Su- 
preme Court,  and  in  such  inferior  courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the  supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and  shall,  at  stated 
times,  receive  for  their  services  a  compensation,  which  shall  not  be  dimin- 
ished during  their  continuance  in  office. 

Section  2. 

1.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity,  aris- 
ing under  this  Constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority  ;  to  all  cases  affecting 
ambassadors,  other  public  ministers  and  consuls  ;  to  all  cases  of  admiralty 
and  maritime  jurisdiction ;  to  controversies  to  which  the  United  States 
shall  be  a  party ;  to  controversies  between  two  or  more  States,  between  a 
State  and  citizens  of  another  State,  between  citizens  of  different  States,  be- 
tween citizens  of  the  same  State  claiming  lands  under  grants  of  different 
States,  and  between  a  State,  or  the  citizens  thereof,  and  foreign  states,  citi- 
zens, or  subjects. 

2.  In  all  eases  affecting  ambassadors,  other  public  ministers  and  con- 
suls, and  those  in  which  a  State  shall  be  a  party,  the  Supreme  Court  shall 
have  original  jurisdiction.  In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions,  and  under  such  regulations,  as  the  Congress  shall 
make. 


XXVI  THE   CONSTITUTION. 

3.  The  trial  of  all  crime 3,  except  in  cases  of  impeachment,  shall  be  by 
jury ;  and  such  trial  shall  he  held  in  the  State  where  the  said  crimes  shall 
have  been  committed  ;  but  when  not  committed  within  any  State,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by  law  have  directed. 

Section  3. 

1.  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort. 
No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open  court. 

2.  The  Congress  shall  have  power  to  declare  the  punishment  of  treason, 
but  no  attainder  of  treason  shall  work  corruption  of  blood,  or  forfeiture, 
except  during  the  life  of  the  person  attainted. 


ARTICLE  IV. 

Section  1. 

1.  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  State.  And  the  Congress 
may  by  general  laws  prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof. 

Section  2. 

1.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  States. 

2.  A  person  charged  in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on  demand 
of  the  executive  authority  of  the  State  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  State  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  State,  under  the  laws  there- 
of, escaping  into  another,  shall,  in  consequence  of  any  law  or  regulation 
therein,  be  discharged  from  such  service  or  labor,  but  shall  be  delivered  up 
on  claim  of  the  party  to  whom  such  service  or  labor  may  be  due. 

Section  3. 

1.  New  States  may  be  admitted  by  the  Congress  into  this  Union  ;  but  no 
new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  any  other 
State ;  nor  any  State  be  formed  by  the  junction  of  two  or  more  States,  or 


THE   CONSTITUTION.  XXVll 

parts  of  States,  without  the  consent  of  the  legislatures  of  the  States  con- 
cerned, as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belonging 
to  the  United  States  ;  and  nothing  in  this  Constitution  shall  be  so  con- 
strued as  to  prejudice  any  claims  of  the  United  States,  or  of  any  particular 
State. 

Section  4. 

1.  The  United  States  shall  guarantee  to  every  State  in  this  Union  a  re- 
publican form  of  government,  and  shall  protect  each  of  them  against  inva- 
sion ;  and  on  application  of  the  legislature,  or  of  the  executive,  (when  the 
legislature  cannot  be  convened,)  against  domestic  violence. 

ARTICLE  V. 

1.  The  Congress,  whenever  two  thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  Constitution,  or,  on  the 
application  of  the  legislatures  of  two  thirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either  case,  shall  be 
valid  to  all  intents  and  purposes,  as  part  of  this  Constitution,  when  ratified 
by  the  legislatures  of  three  fourths  of  the  several  States  or  by  conventions 
in  three  fourths  thereof,  as  the  one  or  the  other  mode  of  ratification  may 
be  proposed  by  the  Congress  :  Provided,  that  no  amendment,  which  may  be 
made  prior  to  the  year  one  thousand  eight  hundred  and  eight,  shall  in  any 
manner  affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article ;  and  that  no  State,  without  its  consent,  shall  be  deprived  of  its 
equal  suffrage  in  the  Senate. 

ARTICLE  VL 

1.  All  debts  contracted  and  engagements  entered  into,  before  the  adop- 
tion of  this  Constitution,  shall  be  as  valid  against  the  United  States  under 
this  Constitution  as  under  the  confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  State  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  State  to  the  contrary  notwithstanding. 

3.  The  senators  and  representatives  before  mentioned,  and  the  members 
of  the  several  State  legislatures,  and  all  executive  and  judicial  officers,  both 
of  the  United  States  and  of  the  several  States^  shall  be  bound,  by  oath  or 
affirmation,  to  support  this  Constitution ;  but  no  religious  test  shall  ever  be 


XXVlll  THE  CONSTITUTION. 

required  as  a  qualification  to  any  office  or  public  trust  under  the  United 
States. 

ARTICLE  VIL 

1.  The  ratification  of  the  conventions  of  nine  States  shall  be  sufficient 
for  the  establishment  of  this  Constitution  between  the  States  so  ratifying 
the  same. 


THE  CONSTITUTION.  xxix 


'  AMENDMENTS    TO    THE    CONSTITUTION. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of  speech, 
or  of  the  press ;  or  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  government  for  a  redress  of  grievances. 

ARTICLE  IL 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free  state, 
the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 

ARTICLE  in. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without 
the  consent  of  the  owner ;  nor  in  time  of  war,  but  in  a  manner  to  be 
prescribed  by  law. 

ARTICLE  IV.      , 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be  vio- 
lated ;  and  no  warrants  shall  issue,  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place  to  be  searched, 
and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual 
service,  in  time  of  war  or  public  danger ;  nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall 
be  compelled,  in  any  criminal  case,  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law  ;  nor  shall 
private  property  be  taken  for  public  use  without  just  compensation. 

ARTICLE  VL 
In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 


XXX  THE  CONSTITUTION. 

and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have  been  previously 
ascertained  by  law ;  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation ;  to  be  confronted  with  the  witnesses  against  him ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor ;  and  to  have  the 
assistance  of  counsel  for  his  defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved  ;  and  no  fact 
tried  by  a  jury  shall  be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

ARTICLE  Vin. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to 
the  people. 

ARTICLE  XL 

The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  state. 

ARTICLE  XIL 

1.  The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot 
for  President  and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves ;  they  shall  name  in  the 
ballots  the  person  voted  for  as  President,  and  in  distinct  ballots  the  person 
voted  for  as  Vice-President ;   and  they  shall  make   distinct  lists  of  all 


THE  CONSTITUTION.  XXxi 

persons  voted  for  as  President,  and  of  all  persons  voted  for  as  Vice-Presi- 
dent, and  of  the  number  of  votes  for  each,  which  list  they  shall  sign  and 
certify  and  transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  president  of  the  Senate ;  the  president  of  the  Senate 
shall,  in  the  presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates,  and  the  votes  shall  then  be  counted  :  the  person  having  the 
greatest  number  of  votes  for  President  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  appointed ;  and  if 
no  person  have  such  majority,  then  from  the  persons  having  the  highest 
numbers,  not  exceeding  three,  on  the  list  of  those  voted  for,  as  President, 
the  House  of  Representatives  shall  choose  immediately,  by  ballot,  the  Presi- 
dent. But,  in  choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two  thirds  of  the 
States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a  choice.  And 
if  the  House  of  Representatives  shall  not  choose  a  President  whenever  the 
right  of  choice  shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Vice-President  shall  act  as  President,  as  in  the  case 
of  the  death  or  other  constitutional  disability  of  the  President. 

2.  The  person  having  the  greatest  number  of  votes  as  Vice-President 
shall  be  the  Vice-President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed  ;  and  if  no  person  have  a  majority,  then  from 
the  two  highest  numbers  on  the  list  the  Senate  shall  choose  the  Vice-Presi- 
dent :  a  quorum  for  the  purpose  shall  consist  of  two  thirds  of  the  whole 
number  of  senators,  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 

ARTICLE  Xni. 

1.  Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment 
for  crime,  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

ARTICLE  XIV. 

1.  All  persons  born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United  States  ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without 


XXXU  THE  CONSTITUTION. 

due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

2.  Representatives  shall  be  apportioned  among  the  several  States  accord- 
ing to  their  respective  numbers,  counting  the  whole  number  of  persons  in 
each  State,  excluding  Indians  not  taxed.  But  when  the  right  to  vote  at 
any  election  for  the  choice  of  electors  for  President  and  Vice-President  of 
the  United  States,  representatives  in  Congress,  the  executive  and  judicial 
officers  of  a  State,  or  the  members  of  the  legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years  of  age 
and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion  or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  in 
such  State. 

3.  No  person  shall  be  a  senator  or  representative  in  Congress,  or  elector 
of  President  and  Vice-President,  or  hold  any  office,  civil  or  military,  under 
the  United  States  or  under  any  State,  who,  having  previously  taken  an 
oath  as  a  member  of  Congress,  or  as  an  officer  of  the  Unied  States,  or  as 
a  member  of  any  State  legislature,  or  as  an  executive  or  judicial  officer 
of  any  State,  to  support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same,  or  given  aid  or  com- 
fort to  the  enemies  thereof.  But  Congress  may,  by  a  vote  of  two  thirds  of 
each  house,  remove  such  disability. 

4.  The  validity  of  the  public  debt  of  the  United  States  authorized  by 
law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  and  rebellion,  shall  not  be  questioned. 

But  neither  the  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave ;  but 
all  such  debts,  obligations,  or  claims  shall  be  held  illegal  and  void. 

5.  The  Congress  shall  have  power  to  enforce  by  appropriate  legislation 
the  provisions  of  this  article. 

ARTICLE  XV. 

1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied 
or  abridged  by  the  United  States,  or  by  any  State,  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

2.  The  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 


COMMENTARIES  ON  THE  CONSTITUTION. 


VOL.  I. 


COMMEISTTARIES 


PRELIMINARY  CHAPTER. 

PLAN   OF   THE  WORK. 

The  principal  object  of  these  Commentaries  is  to  present  a  full 
analysis  and  exposition  of  the  Constitution  of  Government  of  the 
United  States  of  America.  In  order  to  do  this  with  clearness  and 
accuracy,  it  is  necessary  to  understand  what  was  the  political  posi- 
tion of  the  several  States  composing  the  Union,  in  relation  to  each 
other  at  the  time  of  its  adoption.  This  will  naturally  conduct  us 
back  to  the  American  Revolution,  and  to  the  formation  of  the  Con- 
federation consequent  thereon.  But  if  we  stop  here,  we  shall  still 
be  surrounded  with  many  difficulties  in  regard  to  our  domestic 
institutions  and  policy,  which  have  grown  out  of  transactions  of  a 
much  earlier  date,  connected  on  one  side  with  the  common  depend- 
ence of  all  the  colonies  upon  the  British  Empire,  and  on  the 
other  with  the  particular  charters  of  government  and  internal 
legislation  which  belonged  to  each  colony  as  a  distinct  sover- 
eignty, and  which  have  impressed  upon  each  peculiar  habits, 
opinions,  attachments,  and  even  prejudices.  Traces  of  these 
peculiarities  are  everywhere  discernible  in  the  actual  jurispru- 
dence of  each  State  ;  and  are  silently  or  openly  referred  to  in  sev- 
eral of  the  provisions  of  the  Constitution  of  the  United  States.  In 
short,  without  a  careful  review  of  the  origin  and  constitutional  and 
juridical  history  of  all  the  colonies,  of  the  principles  common  to 
all,  and  of  the  diversities  which  were  no  less  remarkable  in  all,  it 
would  be  impossible  fully  to  understand  the  nature  and  objects  of 
the  Constitution ;  the  reasons  on  which  several  of  its  most  impor- 
tant provisions  are  founded ;  and  the  necessity  of  those  conces- 
sions and  compromises  which  a  desire  to  form  a  solid  and  perpet- 
ual Union  has  incorporated  into  its  leading  features. 


4  CONSTITUTIONAL  LAW. 

Tlie  plan  of  the  work  will,  therefore,  naturally  comprehend  three 
great  divisions.  The  first  will  embrace  a  sketch  of  the  charters, 
constitutional  history,  and  ante-revolutionary  jurisprudence  of  the 
colonies.  The  second  will  embrace  a  sketch  of  the  constitutional 
history  of  the  States  during  the  Revolution,  and  the  rise,  progress, 
decline,  and  fall  of  the  Confederation.  The  third  will  embrace 
the  history  of  the  rise  and  adoption  of  the  Constitution ;  and  a 
full  exposition  of  all  its  provisions,  with  the  reasons  on  which  they 
were  respectively  founded,  the  objections  by  which  they  were 
respectively  assailed,  and  such  illustrations  drawn  from  contem- 
poraneous documents,  and  the  subsequent  operations  of  the  gov- 
ernment, as  may  best  enable  the  reader  to  estimate  for  himself  the 
true  value  of  each.  In  this  way  (as  it  is  hoped)  his  judgment  as 
well  as  his  affections  will  be  enlisted  on  the  side  of  the  Constitu- 
tion, as  the  truest  security  of  the  Union,  and  the  only  solid  basis 
on  which  to  rest  the  private  rights,  the  public  liberties,  and  the 
substantial  prosperity  of  the  people  composing  the  American 
Republic. 


BOOK   I. 

HISTORY    OF    THE    COLONIES 


CHAPTER    I. 

ORIGIN   OF  THE  TITLE  TO   TERRITORY  OF  THE  COLONIES. 

§  1.  The  discovery  of  the  continent  of  America  by  Columbus 
in  the  fifteenth  century  awakened  the  attention  of  all  the  maritime 
states  of  Europe.  Stimulated  by  the  love  of  glory,  and  still  more 
by  the  hope  of  gain  and  dominion,  many  of  them  early  embarked  in 
adventurous  enterprises,  the  object  of  which  was  to  found  colonies, 
or  to  search  for  the  precious  metals,  or  to  exchange  the  products 
and  manufactures  of  the  Old  World  for  whatever  was  most  val- 
uable and  attractive  in  the  New.^  England  was  not  behind  her 
continental  neighbors  in  seeking  her  own  aggrandizement,  and 
nourishing  her  then  infant  commerce.^  The  ambition  of  Henry 
the  Seventh  was  roused  by  the  communications  of  Columbus,  and 
in  1495  he  granted  a  commission  to  John  Cabot,  an  enterprising 
Venetian,  then  settled  in  England,  to  proceed  on  a  voyage  of  dis- 
covery, and  to  subdue  and  take  possession  of  any  lands  unoccu- 
pied by  any  Christian  Power,  in  the  name  and  for  the  benefit  of 
the  British  Crown.^  In  the  succeeding  year  Cabot  sailed  on  his 
voyage,  and  having  first  discovered  the  islands  of  Newfoundland 
and  St.  John's,  he  afterwards  sailed  along  the  coast  of  the  conti- 
nent from  the  56th  to  the  38th  degree  of  north  latitude,  and 
claimed  for  his  sovereign  the  vast  region  which  stretches  from  the 
Gulf  of  Mexico  to  the  most  northern  regions.^ 

1  Marshall's  Amer.  Colonies,  12, 13;  1  Haz.  Collec.  51,  72,  82, 103, 105;  Robertson's 
Hist,  of  America,  B.  9. 

2  Robertson's  America,  B.  9. 

8  1  Haz.  Coll.  9  ;  Robertson's  Hist,  of  America,  B.  9. 

*  Marshall,  Am.  Colon.  12,  13;  Robertson's  America,  B.  9. 


6  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

§  2.  Such  is  the  origin  of  the  British  title  to  the  territory  com- 
posing these  United  States.  That  title  was  founded  on  the  right 
of  discovery,  a  right  which  was  held  among  the  European  nations 
a  just  and  sufficient  foundation  on  which  to  rest  their  respective 
claims  to  the  American  continent.  Whatever  controversies  ex- 
isted among  them  (and  they  were  numerous)  respecting  the  extent 
of  their  own  acquisitions  abroad,  they  appealed  to  this  as  the  ulti- 
mate fact,  by  which  their  various  and  conflicting  claims  were  to 
be  adjusted.  It  may  not  be  easy  upon  general  reasoning  to  estab- 
lish the  doctrine  that  priority  of  discovery  confers  any  exclusive 
right  to  territory.  It  was  probably  adopted  by  the  European 
nations  as  a  convenient  and  flexible  rule  by  which  to  regulate 
their  respective  claims.  For  it  was  obvious,  that  in  the  mutual 
contests  for  dominion  in  newly  discovered  lands,  there  would  soon 
arise  violent  and  sanguinary  struggles  for  exclusive  possession, 
unless  some  common  principle  should  be  recognized  by  all  mari- 
time nations  for  the  benefit  of  all.  None  more  readily  suggested 
itself  than  the  one  now  under  consideration ;  and  as  it  was  a 
principle  of  peace  and  repose,  of  perfect  equality  of  benefit  in  pro- 
portion to  the  actual  or  supposed  expenditures  and  hazards  attend- 
ant upon  such  enterprises,  it  received  a  universal  acquiescence,  if 
not  a  ready  approbation.  It  became  the  basis  of  European  polity, 
and  regulated  the  exercise  of  the  rights  of  sovereignty  and  settle- 
ment in  all  the  cisatlantic  Plantations.^  In  respect  to  desert  and 
uninhabited  lands,  there  does  not  seem  any  important  objection 
which  can  be  urged  against  it.  But  in  respect  to  countries  then 
inhabited  by  the  natives,  it  is  not  easy  to  perceive  how,  in  point 
of  justice  or  humanity,  or  general  conformity  to  the  law  of  nature, 
it  can  be  successfully  vindicated.  As  a  conventional  rule  it  might 
properly  govern  all  the  nations  which  recognized  its  obligation ; 
but  it  could  have  no  authority  over  the  aborigines  of  America, 
whether  gathered  into  civilized  communities  or  scattered  in 
hunting  tribes  over  the  wilderness.  Their  right,  whatever  it 
was,  of  occupation  or  use,  stood  upon  original  principles  deducible 
from  the  law  of  nature,  and  could  not  be  justly  narrowed  or  ex- 
tinguished without  their  own  free  consent. 

§  3.  There  is  no  doubt  that  the  Indian  tribes,  inhabiting  this 
continent  at  the  time  of  its  discovery,  maintained  a  claim  to  the 
exclusive  possession  and  occupancy  of  the  territory  within  their 

1  Johnson  v.  M'Intosh,  8  Wheat.  R.  543,  572,  573;  1  Doug.  Summ.  110. 


CH.  l]  origin  of  the  title  to  territory.  7 

respective  limits,  as  sovereigns  and  absolute  proprietors  of  the  soil. 
They  acknowledged  no  obedience  or  allegiance  or  subordination 
to  any  foreign  sovereign  whatsoever  ;  and  as  far  as  they  have  pos- 
sessed the  means,  they  have  ever  since  asserted  this  plenary  right 
of  dominion,  and  yielded  it  up  only  when  lost  by  the  superior  force 
of  conquest,  or  transferred  by  a  voluntary  cession. 

§  4.  This  is  not  the  place  to  enter  upon  the  discussion  of  the 
question  of  the  actual  merits  of  the  titles  claimed  by  the  respec- 
tive parties  upon  principles  of  natural  law.  That  would  involve 
the  consideration  of  many  nice  and  delicate  topics,  as  to  the  nature 
and  origin  of  property  in  the  soil,  and  the  extent  to  which  civ- 
ilized man  may  demand  it  from  the  savage  for  uses  or  cultivation 
different  from,  and  perhaps  more  beneficial  to,  society  than  the  uses 
to  which  the  latter  may  choose  to  appropriate  it.  Such  topics 
belong  more  properly  to  a  treatise  on  natural  law  than  to  lectures 
professing  to  treat  upon  the  law  of  a  single  nation. 

§  5.  The  European  nations  found  little  difficulty  in  reconciling 
themselves  to  the  adoption  of  any  principle  which  gave  ample 
scope  to  their  ambition,  and  employed  little  reasoning  to  support 
it.  They  were  content  to  take  counsel  of  their  interests,  their 
prejudices,  and  their  passions,  and  felt  no  necessity  of  vindicating 
their  conduct  before  cabinets,  which  were  already  eager  to  recog- 
nize its  justice  and  its  policy.  The  Indians  were  a  savage  race, 
sunk  in  the  depths  of  ignorance  and  heathenism.  If  they  might 
not  be  extirpated  for  their  want  of  religion  and  just  morals,  they 
might  be  reclaimed  from  their  errors.  They  were  bound  to  yield 
to  the  superior  genius  of  Europe,  and  in  exchanging  their  wild  and 
debasing  habits  for  civilization  and  Christianity  they  were  deemed 
to  gain  more  than  an  equivalent  for  every  sacrifice  and  suffering.^ 
The  Papal  authority,  too,  was  brought  in  aid  of  these  great  designs ; 
and  for  the  purpose  of  overthrowing  heathenism,  and  propagating 
the  Catholic  religion  ,2  Alexander  the  Sixth,  by  a  Bull  issued  in 
1493,  granted  to  the  Crown  of  Castile  the  whole  of  the  immense 
territory  then  discovered,  or  to  be  discovered,  between  the  poles, 
so  far  as  it  was  not  then  possessed  by  any  Christian  prince.^ 

1  8  Wheat.  R.  543,  573;  1  Haz.  Coll.  50,  51,  72,  82,  103,  105;  Vattel,  B.  1,  ch.  18, 
§  207,  208,  209,  and  note. 

■^  •'  Ut  fides  Catholica,  et  Christiana  Religio  nostris  praesertim  temporibus  exaltctur, 
&c.,  ac  barbarae  nationes  deprimantur,  et  ad  fidem  ipsam  reducantur,"  is  the  language 
of  the  Bull.     1  Haz.  Coll.  3. 

3  1  Haz.  Collect.  3;  Marshall,  Hist.  Col.  13,  14. 


8  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

§  6.  The  principle,  then,  that  discovery  gave  title  to  the  govern- 
ment, by  whose  subjects  or  by  whose  authority  it  was  made,  against 
all  other  European  governments,  being  once  established,  it  fol- 
lowed almost  as  a  matter  of  course,  that  every  government  within 
the  limits  of  its  discoveries  excluded  all  other  persons  from  any 
right  to  acquire  the  soil  by  any  grant  whatsoever  from  the  natives. 
No  ;nation  would  suffer  either  its  own  subjects  or  those  of  any 
other  nation  to  set  up  or  vindicate  any  such  title .^  It  was  deemed 
a  right  exclusively  belonging  to  the  government  in  its  sovereign 
capacity  to  extinguish  the  Indian  title,  and  to  perfect  its  own 
dominion  over  the  soil,  and  dispose  of  it  according  to  its  own  good 
pleasure. 

§  7.  It  may  be  asked,  what  was  the  effect  of  this  principle  of 
discovery  in  respect  to  the  rights  of  the  natives  themselves.  In 
the  view  of  the  Europeans  it  created  a  peculiar  relation  between 
themselves  and  the  aboriginal  inhabitants.  The  latter  were  admit- 
ted to  possess  a  present  right  of  occupancy,  or  use  in  the  soil, 
which  was  subordinate  to  the  ultimate  dominion  of  the  discoverer. 
They  were  admitted  to  be  the  rightful  occupants  of  the  soil,  with  a 
legal  as  well  as  just  claim  to  retain  possession  of  it,  and  to  use  it 
according  to  their  own  discretion.  In  a  certain  sense  they  were  per- 
mitted to  exercise  rights  of  sovereignty  over  it.  They  might  sell 
or  transfer  it  to  the  sovereign,  who  discovered  it ;  but  they  were 
denied  the  authority  to  dispose  of  it  to  any  other  persons  ;  and 
until  such  a  sale  or  transfer,  they  were  generally  permitted  to 
occupy  it  as  sovereigns  de  facto.  But  notwithstanding  this  occu- 
pancy, the  European  discoverers  claimed  and  exercised  the  right 
to  grant  the  soil,  while  yet  in  possession  of  the  natives,  subject 
'however  to  their  right  of  occupancy ;  and  the  title  so  granted  was 
universally  admitted  to  convey  a  sufficient  title  in  the  soil  to  the 
grantees  in  perfect  dominion,  or,  as  it  is  sometimes  expressed 
in  treatises  of  public  law,  it  was  a  transfer  of  plenum  et  utile 
dominium. 

§  8.  This  subject  was  discussed  at  great  length  in  the  celebrated 
case  oi  Johnson  v.  M'Intosh;  and  one  cannot  do  better  than  tran- 
scribe from  the  pages  of  that  report  a  summary  of  the  historical 
confirmations  adduced  in  support  of  these  principles,  which  is  more 
clear  and  exact  than  has  ever  been  before  in  print. 

§  9.  "  The  history  of  America,  (says  Mr.  Chief  Justice  Marshall, 
1  Chalmers,  Annals,  676,  677  ;  1  Doug.  Summ.  213. 


CH.  I.]  ORIGIN  OF  THE  TITLE   TO  TERRITORY.  9 

in  delivering  the  opinion  of  the  Court,)  ^  from  its  discovery  to  the 
present  day,  proves,  we  think,  the  universal  recognition  of  these 
principles. 

"  Spain  did  not  rest  her  title  solely  on  the  grant  of  the  Pope. 
Her  discussions  respecting  boundary,  with  France,  with  Great 
Britain,  and  with  the  United  States,  all  show  that  she  placed  it 
on  the  rights  given  by  discovery.  Portugal  sustained  her  claim  to 
the  Brazils  by  the  same  title. 

§  10.  "  France,  also,  founded  her  title  to  the  vast  territories  she 
claimed  in  America  on  discovery.  However  conciliatory  her  con- 
duct to  the  natives  may  have  been,  she  still  asserted  her  right  of 
dominion  over  a  great  extent  of  country  not  actually  settled  by 
Frenchmen,  and  her  exclusive  right  to  acquire  and  dispose  of  the 
soil,  which  remained  in  the  occupation  of  Indians.  Her  monarch 
claimed  all  Canada  and  Acadie,  as  colonies  of  France,  at  a  time 
when  the  French  population  was  very  inconsiderable,  and  the  In- 
dians occupied  almost  the  whole  country.  He  also  claimed  Louis- 
iana, comprehending  the  immense  territories  watered  by  the 
Mississippi,  and  the  rivers  which  empty  into  it,  by  the  title  of 
discovery.  The  letters-patent  granted  to  the  Sieur  Demonts,  in 
1603,  constitute  him  Lieutenant-General,  and  the  representative 
of  the  king  in  Acadie,  which  is  described  as  stretching  from  the 
40th  to  the  46th  degree  of  north  latitude,  with  authority  to  extend 
the  power  of  the  French  over  that  country  and  its  inhabitants,  to 
give  laws  to  the  people,  to  treat  with  the  natives,  and  enforce  the 
observance  of  treaties,  and  to  parcel  out  and  give  title  to  lands, 
according  to  his  own  judgment. 

§  11.  "  The  states  of  Holland  also  made  acquisitions  in  America, 
and  sustained  their  right  on  the  common  principle  adopted  by  all 
Europe.  They  allege,  as  we  are  told  by  Smith,  in  his  History  of 
New  York,  that  Henry  Hudson,  who  sailed,  as  they  say,  under  the 
orders  of  their  East  India  Company,  discovered  the  country  from 
the  Delaware  to  the  Hudson,  up. which  he  sailed  to  the  43d  degree 
of  north  latitude ;  and  this  country  they  claimed  under  the  title 
acquired  by  this  voyage.     Their  first  object  was  commercial,  as 

1  8  Wheat.  543.  See  also  Worcester  v.  Georgia,  6  Peters's  R  51.5  ;  4  Jefferson's  Cor- 
resp.  478  ;  Mackintosh's  History  of  Ethical  Philosophy,  (Phila.  1832,)  50  ;  Johnson  v. 
M'  Intosk,  8  Wheat.  R.  574  -  588.  [Wheat.  Int.  Law,  pt.  2,  eh.  4,  ^  5  ;  Jackson  v.  Wood, 
7  Johns.  290  ;  Clark  v.  Williams,  19  Pick.  499  ;  Godfrey  v.  Beardsley,  2  McLean,  412  ; 
Coleman  v.  Doe,  4  S.  &  M.  40  ;  Jones  v.  Evans,  5  Yerg.  323 ;  Rowland  v.  Ladiga,  9  Port. 
488 ;  Sparkman  v.  Porter,  1  Paine,  457.] 


10  HISTORY   OF   THE   COLONIES.  [BOOK  I. 

appears  by  a  grant  made  to  a  company  of  merchants  in  1614 ; 
but  in  1621,  the  States-General  made,  as  we  are  told  by  Mr. 
Smith,  a  grant  of  the  country  to  the  West  India  Company,  by 
the  name  of  New  Netherlands.  The  claim  of  the  Dutch  was 
always  contested  by  the  English ;  not  because  they  questioned  the 
title  given  by  discovery,  but  because  they  insisted  on  being  them- 
selves the  rightful  claimants  under  that  title.  Their  pretensions 
were  finally  decided  by  the  sword. 

§  12.  "No  one  of  the  powers  of  Europe  gave  its  full  assent  to 
this  principle  more  unequivocally  than  England.  The  documents 
upon  this  subject  are  ample  and  complete.  So  early  as  the  year 
1496,  her  monarch  granted  a  commission  to  the  Cabots,  to  dis- 
cover countries  then  unknown  to  Christian  people,  and. to  take  pos- 
session of  them  in  the  name  of  the  King  of  England.  Two  years 
afterwards,  Cabot  proceeded  on  this  voyage,  and  discovered  the 
continent  of  North  America,  along  which  he  sailed  as  far  south  as 
Virginia.  To  this  discovery  the  English  trace  their  title.  In  this 
first  effort  made  by  the  English  government  to  acquire  territory 
on  this  continent,  we  perceive  a  complete  recognition  of  the  prin- 
ciple which  has  been  mentioned.  The  right  of  discovery  given  by 
this  commission  is  confined  to  countries  '  then  unknown  to  Chris- 
tian people ' ;  and  of  these  countries  Cabot  was  empowered  to  take 
possession  in  the  name  of  the  King  of  England.  Thus  asserting  a 
right  to  take  possession,  notwithstanding  the  occupancy  of  the 
natives,  who  were  heathens,  and,  at  the  same  time,  admitting  the 
prior  title  of  any  Christian  people,  who  may  have  made  a  previous 
discovery. 

§13.  "The  same  principle  continued  to  be  recognized.  The 
charter  granted  to  Sir  Humphrey  Gilbert,  in  1578,  authorizes  him 
to  discover  and  take  possession  of  such  remote,  heathen,  and  bar- 
barous lands,  as  were  not  actually  possessed  by  any  Christian 
prince  or  people.  This  charter  was  afterwards  renewed  to  Sir 
Walter  Raleigh,  in  nearly  the  same  terms. 

§  14.  "By  the  charter  of  1606,  under  which  the  first  perma- 
nent English  settlement  on  this  continent  was  made,  James  the 
First  granted  to  Sir  Thomas  Gates  and  others,  those  territories  in 
America  lying  on  the  sea-coast  between  the  34th  and  45th  degrees 
of  north  latitude,  and  which  either  belonged  to  that  monarch,  or 
were  not  then  possessed  by  any  other  Christian  prince  or  people. 
The  grantees  were  divided  into  two  companies  at  their  own  request. 


CH.  I.]  ORIGIN  OF  THE  TITLE  TO   TERRITORY.  11 

The  first,  or  southern  colony  was  directed  to  settle  between  the 
34th  and  41st  degrees  of  north  latitude  ;  and  the  second,  or  north- 
ern colony,  between  the  38th  and  45th  degrees. 

§  15.  "  In  1609,  after  some  expensive  and  not  very  successful 
attempts  at  settlement  had  been  made,  a  new  and  more  enlarged 
charter  was  given  by  the  crown  to  the  first  colony,  in  which  the 
king  granted  to  the  '  Treasurer  and  Company  of  Adventurers  of 
the  city  of  London  for  the  first  colony  in  Virginia,'  in  absolute 
property,  the  lands  extending  along  the  sea-coast  four  hundred 
miles,  and  into  the  land  throughout  from  sea  to  sea.  This 
charter,  which  is  a  part  of  the  special  verdict  in  this  cause,  was 
annulled  so  far  as  respected  the  rights  of  the  company,  by  the 
judgment  of  the  Court  of  King's  Bench  on  a  writ  of  quo  war- 
ranto ;  but  the  whole  effect  allowed  to  this  judgment  was,  to  re- 
vest in  the  crown  the  powers  of  government,  and  the  title  to  the 
lands  within  its  limits. 

§  16.  "  At  the  association  of  those  who  held  under  the  grant 
to  the  second  or  northern  colony,  a  new  and  more  enlarged 
charter  was  granted  to  the  Duke  of  Lenox  and  others,  in  1620, 
who  were  denominated  the  Plymouth  Company,  conveying  to 
them  in  absolute  property  all  the  lands  between  the  40th  and 
48th  degrees  of  north  latitude.  Under  this  patent.  New  England 
has  been  in  a  great  measure  settled.  The  company  conveyed  to 
Henry  Rose  well  and  others,  in  1627,  that  territory  which  is  now 
Massachusetts ;  and  in  1628,  a  charter  of  incorporation,  compre- 
hending the  powers  of  government,  was  granted  to  the  purchas- 
ers. A  great  part  of  New  England  was  granted  by  this  com- 
pany, which,  at  length,  divided  their  remaining  lands  among 
themselves  ;  and,  in  1635,  surrendered  their  charter  to  the  crown. 
A  patent  was  granted  to  Gorges  for  Maine,  which  was  allotted 
to  him  in  the  division  of  property.  All  the  grants  made  by  the 
Plymouth  Company,  so  far  as  we  can  learn,  have  been  respected. 

§  17.  "  In  pursuance  of  the  same  principle,  the  king,  in  1664, 
granted  to  the  Duke  of  York  the  country  of  New  England  as  far 
south  as  the  Delaware  Bay.  His  royal  highness  transferred  New 
Jersey  to  Lord  Berkeley  and  Sir  George  Carteret. 

§  18.  "  In  1663,  the  crown  granted  to  Lord'  Clarendon  and 
others  the  country  lying  between  the  36th  degree  of  north  lati- 
tude and  the  river  St.  Mathes  ;  and  in  1666,  the  proprietors  ob- 
tained from  the  crown  a  new  charter,  granting  to  them  that  prov- 


12  HISTORY   OP  THE   COLONIES.  [BOOK  I. 

ince  in  the  king's  dominions  in  North  America,  which  lies  from 
36  degrees  30  minutes  north  latitude  to  the  29th  degree,  and 
from  the  Atlantic  Ocean  to  the  South  Sea. 

§  19.  "  Thus  has  our  whole  country  been  granted  by  the 
crown  while  in  the  occupation  of  the  Indians.  These  grants  pur- 
port to  convey  the  soil,  as  well  as  the  right  of  dominion,  to  the 
grantees.  In  those  governments  which  were  denominated  royal, 
where  the  right  to  the  soil  was  not  vested  in  individuals,  but  re- 
mained in  the  crown,  or  was  vested  in  the  colonial  government, 
the  king  claimed  and  exercised  the  right  of  granting  lands,  and  of 
dismembering  the  government  at  his  will.  The  grants  made  out 
of  the  two  original  colonies,  after  the  resumption  of  their  charters 
by  the  crown,  are  examples  of  this.  The  governments  of  New 
England,  New  York,  New  Jersey,  Pennsylvania,  Maryland,  and 
a  part  of  Carolina  were  thus  created.  In  all  of  them  the  soil, 
at  the  time  the  grants  were  made,  was  occupied  by  the  Indians. 
Yet  almost  every  title  within  those  governments  is  dependent  on 
these  grants.  In  some  instances,  the  soil  was  conveyed  by  the 
crown  unaccompanied  by  the  powers  of  government,  as  in  the 
case  of  the  northern  neck  of  Virginia.  It  has  never  been  ob- 
jected to  this,  or  to  any  other  similar  grant,  that  the  title  as  well 
as  possession  was  in  the  Lidians  when  it  was  made,  and  that  it 
passed  nothing  on  that  account. 

§  20.  "  These  various  patents  cannot  be  considered  as  nulli- 
ties ;  nor  can  they  be  limited  to  a  mere  grant  of  the  powers  of 
government.  A  charter  intended  to  convey  political  power  only 
would  never  contain  words  expressly  granting  the  land,  the  soil, 
and  the  waters.  Some  of  them  purport  to  convey  the  soil  alone  ; 
and  in  those  cases  in  which  the  powers  of  government  as  well 
as  the  soil  are  conveyed  to  individuals,  the  crown  has  always 
acknowledged  itself  to  be  boimd  by  the  grant.  Though  the 
power  to  dismember  regal  governments  was  asserted  and  exer- 
cised, the  power  to  dismember  proprietary  governments  was  not 
claimed.  And,  in  some  instances,  even  after  the  powers  of  gov- 
ernment were  revested  in  the  crown,  the  title  of  the  proprietors 
to  the  soil  was  respected. 

§  21.  "  Charles  the  Second  was  extremely  anxious  to  acquire 
the  property  of  Maine,  but  the  grantees  sold  it  to  Massachusetts, 
and  he  did  not  venture  to  contest  the  right  of  the  colony  to  the 
soil.      The   Carolinas  were   originally  proprietary  governments. 


CH.  I.]  ORIGIN   OF  THE   TITLE  TO   TERRITORY.  18 

In  1721,  a  revolution  was  effected  by  the  people,  who  shook  off 
their  obedience  to  the  proprietors,  and  declared  their  dependence 
immediately  on  the  crown.  The  king,  however,  purchased  the 
title  of  those  who  were  disposed  to  sell.  One  of  them,  Lord 
Carteret,  surrendered  his  interest  in  the  government,  but  retained 
his  title  to  the  soil.  That  title  was  respected  till  the  Revolution, 
when  it  was  forfeited  by  the  laws  of  war. 

§  22.  "  Further  proofs  of  the  extent  to  which  this  principle 
has  been  recognized  will  be  found  in  the  history  of  the  wars,  ne- 
gotiations, and  treaties  which  the  different  nations  claiming  ter- 
ritory in  America  have  carried  on,  and  held  with  each  other. 
The  contests  between  the  cabinets  of  Versailles  and  Madrid  re- 
specting the  territory  on  the  northern  coast  of  the  Gulf  of  Mex- 
ico were  fierce  and  bloody  ;  and  continued  until  the  establish- 
ment of  a  Bourbon  on  the  throne  of  Spain  produced  such  ami- 
cable dispositions  in  the  two  crowns  as  to  suspend  or  terminate 
them.  Betweeen  France  and  Great  Britain,  whose  discoveries, 
as  well  as  settlements,  were  nearly  contemporaneous,  contests 
for  the  country  actually  covered  by  the  Indians  began  as  soon 
as  their  settlements  approached  each  other,  and  were  continued 
until  finally  settled,  in  the  year  1763,  by  the  treaty  of  Paris. 

§  23.  "  Each  nation  had  granted  and  partially  settled  the 
country  denominated  by  the  French  Acadie  and  by  the  English 
Nova  Scotia.  By  the  12th  article  of  the  treaty  of  Utrecht,  made 
in  1703,  his  most  Christian  Majesty  ceded  to  the  Queen  of  Great 
Britain  '  all  Nova  Scotia,  or  Acadie,  with  its  ancient  boundaries.' 
A  great  part  of  the  ceded  territory  was  in  possession  of  the  In- 
dians, and  the  extent  of  the  cession  could  not  be  adjusted  by  the 
commissioners  to  whom  it  was  to  be  referred.  The  treaty  of 
Aix  la  Chapelle,  which  was  made  on  the  principle  of  the  status 
ante  helium^  did  not  remove  this  subject  of  controversy.  Com- 
missioners for  its  adjustment  were  appointed,  whose  very  able 
and  elaborate,  though  unsuccessful  arguments  in  favor  of  the 
title  of  their  respective  sovereigns  show  how  entirely  each  relied 
on  the  title  given  by  discovery  to  lands  remaining  in  the  posses- 
sion of  Indians. 

§  24.  "  After  the  termination  of  this  fruitless  discussion,  the 
subject  was  transferred  to  Europe,  and  taken  up  by  the  cabinets 
of  Versailles  and  London.  This  controversy  embraced  not  only 
the  boundaries  of  New  England,  Nova  Scotia,  and  that  part  of 


14  HISTORY   OF  THE   COLONIES.  [BOOK  L 

Canada  which  adjoined  those  colonies,  but  embraced  our  whole 
Western  country  also.  France  contended,  not  only  that  the  St. 
Lawrence  was  to  be  considered  as  the  centre  of  Canada,  but  that 
the  Ohio  was  within  that  colony.  She  founded  this  claim  on 
discovery,  and  on  having  used  that  river  for  the  transportation 
of  troops  in  a  war  with  some  Southern  Indians.  This  river  was 
comprehended  in  the  chartered  limits  of  Virginia  ;  but,  though 
the  right  of  England  to  a  reasonable  extent  of  country,  in  virtue 
of  her  discovery  of  the  sea-coast,  and  of  the  settlements  she  made 
on  it,  was  not  to  be  questioned,  her  claim  of  all  the  lands  to  the 
Pacific  Ocean,  because  she  had  discovered  the  country  washed 
by  the  Atlantic,  might,  without  derogating  from  the  principle 
recognized  by  all,  be  deemed  extravagant.  It  interfered,  too, 
with  the  claims  of  France  founded  on  the  same  principle.  She 
therefore  sought  to  strengthen  her  original  title  to  the  lands  in 
controversy,  by  insisting  that  it  had  been  acknowledged  by 
France  in  the  15th  article  of  the  treaty  of  Utrecht.  The  dispute 
respecting  the  construction  of  that  article  has  no  tendency  to 
impair  the  principle,  that  discovery  gave  a  title  to  lands  still  re- 
maining in  the  possession  of  the  Indians.  Whichever  title  pre- 
vailed, it  was  still  a  title  to  lands  occupied  by  the  Indians,  whose 
right  of  occupancy  neither  controverted,  and  neither  had  then 
extinguished. 

§  25.  "  These  conflicting  claims  produced  a  long  and  bloody 
war,  which  was  terminated  by  the  conquest  of  the  whole  country 
east  of  the  Mississippi.  In  the  treaty  of  1763,  France  ceded  and 
guaranteed  to  Great  Britain  all  Nova  Scotia,  or  Acadie,  and 
Canada,  with  their  dependencies  ;  and  it  was  agreed,  that  the 
boundaries  between  the  territories  of  the  two  nations  in  America 
should  be  irrevocably  fixed  by  a  line  drawn  from  the  source  of  the 
Mississippi,  through  the  middle  of  that  river  and  the  lakes  Mau- 
repas  and  Pontchartrain,  to  the  sea.  This  treaty  expressly  cedes, 
and  has  always  been  understood  to  cede,  the  whole  country  on 
the  English  side  of  the  dividing  line  between  the  two  nations, 
although  a  great  and  valuable  part  of  it  was  occupied  by  the 
Indians.  Great  Britain,  on  her  part,  surrendered  to  France  all 
her  pretensions  to  the  country  west  of  the  Mississippi.  It  has 
never  been  supposed  that  she  surrendered  nothing,  although  she 
was  not  in  actual  possession  of  a  foot  of  land.  She  surrendered 
all  right  to  acquire  the  country ;   and  any  after  attempt  to  pur- 


CH.  I.]  ORIGIN  OF  THE  TITLE  TO  TERRITORY.  15 

chase  it  from  the  Indians  would  have  been  considered  and  treated 
as  an  invasion  of  the  territories  of  France. 

§  26.  "By  the  20th  article  of  the  same  treaty,  Spain  ceded 
Florida,  with  its  dependencies,  and  all  the  country  she  claimed 
east  or  southeast  of  the  Mississippi,  to  Great  Britain.  Great  part 
of  this  territory  also  was  in  possession  of  the  Indians. 

§  27.  "  By  a  secret  treaty,  which  was  executed  about  the  same 
time,  France  ceded  Louisiana  to  Spain  ;  and  Spain  has  since  retro- 
ceded  the  same  country  to  France.  At  the  time  both  of  its  ces- 
sion and  retrocession,  it  was  occupied  chiefly  by  the  Indians. 

§  28.  "  Thus,  all  the  nations  of  Europe  who  have  acquired  ter- 
ritory on  this  continent  have  asserted  in  themselves,  and  have 
recognized  in  others,  the  exclusive  right  of  the  discovery  to  appro- 
priate the  lands  occupied  by  the  Indians.  Have  the  American 
States  rejected  or  adopted  this  principle  ? 

§  29.  "  By  the  treaty  which  concluded  the  war  of  our  Revolu- 
tion, Great  Britain  relinquished  all  claim,  not  only  to  the  govern- 
ment, but  to  the  *  propriety  and  territorial  rights  of  the  United 
States,'  whose  boundaries  were  fixed  in  the  second  article.  By 
this  treaty,  the  powers  of  government,  and  the  right  to  soil,  which 
had  previously  been  in  Great  Britain,  passed  definitively  to  these 
States.  We  had  before  taken  possession  of  them,  by  declaring 
independence ;  but  neither  the  declaration  of  independence,  nor 
the  treaty  confirming  it,  could  give  us  more  than  that  which  we 
before  possessed,  or  to  which  Great  Britain  was  before  entitled. 
It  has  never  been  doubted,  that  either  the  United  States  or  the 
several  States  had  a  clear  title  to  all  the  lands  within  the  boun- 
dary lines  described  in  the  treaty,  subject  only  to  the  Indian  right 
of  occupancy,  and  that  the  exclusive  power  to  extinguish  that 
right  was  vested  in  that  government  which  might  constitutionally 
exercise  it. 

§  30.  "  Virginia,  particularly,  within  whose  chartered  limits  the 
land  in  controversy  lay,  passed  an  act,  in  the  year  1779,  declaring 
her  *  exclusive  right  of  pre-emption  from  the  Indians  of  all  the 
lands  within  the  limits  of  her  own  chartered  territory,  and  that  no 
persons  whatsoever  have,  or  ever  had,  a  right  to  purchase  any 
lands  within  the  same  from  any  Indian  nation,  except  only  per- 
sons duly  authorized  to  make  such  purchase,  formerly  for  the  use 
and  benefit  of  the  colony,  and  lately  for  the  Commonwealth.' 
The  act  then  proceeds  to  annul  all  deeds  made  by  Indians  to  indi- 
viduals for  the  private  use  of  the  purchasers. 


16  HISTORY   OF   THE   COLONIES.  [BOOK  I. 

§  31.  **  Without  ascribing  to  this  act  the  power  of  annulling 
vested  rights,  or  admitting  it  to  countervail  the  testimony  fur- 
nished by  the  marginal  note  opposite  to  the  title  of  the  law  forbid- 
ding purchases  from  the  Indians,  in  the  revisals  of  the  Virginia 
statutes,  stating  that  law  to  be  repealed,  it  may  safely  be  consid- 
ered as  an  unequivocal  affirmance,  on  the  part  of  Virginia,  of  the 
broad  principle,  which  had  always  been  maintained,  that  the  ex- 
clusive right  to  purchase  from  the  Indians  resided  in  the  govern- 
ment. 

§  32.  "  In  pursuance  of  the  same  idea,  Virginia  proceeded,  at 
the  same  session,  to  open  her  land-office  for  the  sale  of  that  coun- 
try which  now  constitutes  Kentucky,  a  country  every  acre  of 
which  was  then  claimed  and  possessed  by  Indians,  who  main- 
tained their  title  with  as  much  persevering  courage  as  was  ever 
manifested  by  any  people. 

§  33.  "  The  States  having  within  their  chartered  limits  different 
portions  of  territory  covered  by  Indians,  ceded  that  territory,  gen- 
erally, to  the  United  States,  on  conditions  expressed  in  their  deeds 
of  cession,  which  demonstrate  the  opinion,  that  they  ceded  the  soil 
as  well  as  jurisdiction,  and  that  in  doing  so,  they  granted  a  pro- 
ductive fund  to  the  government  of  the  Union.  The  lands  in  con- 
troversy lay  within  the  chartered  limits  of  Virginia,  and  were 
ceded  with  the  whole  country  northwest  of  the  river  Ohio.  This 
grant  contained  reservations  and  stipulations,  which  could  only  be 
made  by  the  owners  of  the  soil ;  and  concluded  with  a  stipulation, 
that '  all  the  lands  in  the  ceded  territory,  not  reserved,  should  be 
considered  as  a  common  fund,  for  the  use  and  benefit  of  such  of 
the  United  States  as  have  become,  or  shall  become,  members  of 
the  confederation,'  &c.,  *  according  to  their  usual  respective  pro- 
portions in  the  general  charge  and  expenditure,  and  shall  be  faith- 
fully and  bona  fide  disposed  of  for  that  purpose,  and  for  no  other 
use  or  purpose  whatsoever.'  The  ceded  territory  was  occupied  by 
numerous  and  warlike  tribes  of  Indians  ;  but  the  exclusive  right 
of  the  United  States  to  extinguish  their  title,  and  to  grant  the  soil, 
has  never,  we  believe,  been  doubted. 

§  34.  "  After  these  States  became  independent,  a  controversy 
subsisted  between  them  and  Spain  respecting  boundary.  By  the 
treaty  of  1795,  this  controversy  was  adjusted,  and  Spain  ceded  to 
the  United  States  the  territory  in  question.  This  territory,  though 
claimed  by  both  nations,  was  chiefly  in  the  actual  occupation  of 
Indians. 


CH.  l]  origin  of  the  title  to  territory.  17 

§  35.  "  The  magnificent  purchase  of  Louisiana  was  the  pur- 
chase from  France  of  a  country  almost  entirely  occupied  by 
numerous  tribes  of  Indians,  who  are  in  fact  independent.  Yet, 
any  attempt  of  others  to  intrude  into  that  country  would  be  con- 
sidered as  an  aggression  which  would  justify  war. 

§  36.  "  Our  late  acquisitions  from  Spain  are  of  the  same  char- 
acter; and  the  negotiations  which  preceded  those  acquisitions 
recognize  and  elucidate  the  principle  which  has  been  received  as 
the  foundation  of  all  European  title  in  America. 

§  37.  "  The  United  States,  then,  have  unequivocally  acceded  to 
that  great  and  broad  rule  by  which  its  civilized  inhabitants  now 
hold  this  country.  They  hold,  and  assert  in  themselves,  the  title 
by  which  it  was  acquired.  They  maintain,  as  all  others  have 
maintained,  that  discovery  gave  an  exclusive  right  to  extinguish 
the  Indian  title  of  occupancy,  either  by  purchase  or  by  conquest ; 
and  gave  also  a  right  to  such  a  degree  of  sovereignty  as  the  cir- 
cumstances of  the  people  would  allow  them  to  exercise. 

§  38.  "  The  power  now  possessed  by  the  government  of  the 
United  States  to  grant  lands  resided,  while  we  were  colonies,  in 
the  crown  or  its  grantees.  The  validity  of  the  titles  given  by 
either  has  never  been  questioned  in  our  courts.  It  has  been  exer- 
cised uniformly  over  territory  in  possession  of  the  Indians.  The 
existence  of  this  power  must  negative  the  existence  of  any  right 
which  may  conflict  with  and  control  it.  An  absolute  title  to  lands 
cannot  exist,  at  the  same  time,  in  different  persons,  or  in  different 
governments.  An  absolute  must  be  an  exclusive  title,  or  at  least 
a  title  which  excludes  all  others  not  compatible  with  it.  All  our 
institutions  recognize  the  absolute  title  of  the  crown,  subject  only 
to  the  Indian  right  of  occupancy,  and  recognize  the  absolute  title 
of  the  crown  to  extinguish  that  right.  This  is  incompatible  with 
an  absolute  and  complete  title  in  the  Indians." 


VOL.   I. 


18  HISTORY  OF  THE   COLONIES.  [BOOK  I. 


CHAPTER    II. 

ORIGIN  AND   SETTLEMENT  OF  VIRGINIA. 

§  39.  Having  thus  traced  out  the  origin  of  the  title  to  the  soil 
of  America  asserted  by  the  European  nations,  we  may  now  enter 
upon  a  consideration  of  the  manner  in  which  the  settlements  were 
made,  and  of  the  political  constitutions  by  which  the  various  col- 
onies were  organized  and  governed. 

§  40.  For  a  long  time  after  the  discoveries  of  Cabot  were  made, 
England  from  various  causes  remained  in  a  state  of  indifference  or 
inactivity  in  respect  to  the  territory  thus  subjected  to  her  sway.^ 
Nearly  a  century  elapsed  before  any  effectual  plan  for  planting  any 
colony  was  put  into  operation  ;  and  indeed  the  ill  success,  not  to 
say  entire  failure,  of  the  first  expedition  was  well  calculated  to 
abate  any  undue  confidence  in  the  value  of  such  enterprises.  In 
1578,  Sir  Humphrey  Gilbert,  having  obtained  letters-patent  from 
Queen  Elizabeth,^  granting  him  and  his  heirs  any  lands  discovered 
by  him,  attempted  a  settlement  on  the  cold  and  barren  shores  of 
Cape  Breton  and  the  adjacent  regions,  and  exhausted  his  fortune 
and  lost  his  life  in  the  fruitless  labor.^  The  brilliant  genius  of 
Sir  Walter  Raleigh  was  captivated  by  the  allurements  of  any 
scheme  which  gave  play  to  his  romantic  temper ;  and  unmindful 
of  the  disastrous  fate  of  his  half-brother,  or  gathering  fresh 
courage  from  the  consciousness  of  difficulties,  eagerly  followed  up 
the  original  plan  under  a  new  patent  from  the  crown.^  To  him 
we  are  indebted  for  the  first  plantations  in  the  South ;  ^  and  such 
was  the  splendor  of  the  description  of  the  soil  and  climate  and 
productions  of  that  region  given  by  the  first  adventurers,  that 
Elizabeth  was  proud  to  bestow  upon  it  the  name  of  Virginia^  and 
thus  to  connect  it  with  the  reign  of  a  virgin  Queen. ^  But  not- 
withstanding the  bright  prospects  thus  held  out,  three  successive " 

1  Robertson's  America,  B.  9  ;  Doug.  Summ.  110,  &c. 

2  1  Haz.  Coll.  24. 

8  Marshall's  Colon.  15,  16;  Robertson's  America,  B.  9. 
*  1  Haz.  Coll.  33  ;  Robertson's  America,  B.  9. 

5  1  Haz.  Coll.  38  -  40 ;  2  Doug.  Summ.  385. 

6  Marsh.  Colon.  17;  Robertson's  America,  B.  9.    ' 


CH.  II.]  ORIGIN  AND  SE;TTLEMENT   OF  VIRGINIA.  19 

attempts  under  the  auspices  of  Raleigh  ended  in  a  ruinous  disas- 
ter, and  seemed  but  a  presage  of  the  hard  fate  and  darkened  for- 
tunes of  that  gallant,  but  unfortunate  gentleman.^ 

§  41.  The  first  permanent  settlement  made  in  America  under 
the  auspices  of  England  was  under  a  charter  granted  to  Sir 
Thomas  Gates  and  his  associates  by  James  the  First,  in  the 
fourth  year  after  his  accession  to  the  throne  of  England  ^  (in 
1606).  That  charter  granted  to  them  the  territories  in  America, 
then  commonly  called  Virginia,  lying  on  the  sea-coast  between 
the  34th  and  the  4oth  degrees  of  north  latitude  and  the  islands  ad- 
jacent within  100  miles,  which  were  not  belonging  to  or  possessed 
by  any  Christian  prince  or  people.  The  associates  were  divided 
into  two  companies,  one  of  which  was  required  to  settle  between 
the  34th  and  41st  degrees  of  north  latitude,  and  the  other  be- 
tween the  38th  and  45th  degrees  of  north  latitude,  but  not  within 
100  miles  of  the  prior  colony.  By  degrees  the  name  of  Virginia 
was  confined  to  the  first  or  south  colony .^  The  second  assumed 
the  name  of  the  Plymouth  Company,  from  the  residence  of  the 
original  grantees ;  and  New  England  was  founded  under  their 
auspices.*  Each  colony  had  exclusive  propriety  in  all  the  terri- 
tory within  fifty  miles  from  the  first  seat  of  their  plantation.^ 

§  42.  Some  of  the  provisions  of  this  charter  deserve  a  particu- 
lar consideration  from  the  light  they  throw  upon  the  political 
and  civil  condition  of  the  persons  who  should  become  inhab- 
itants of  the  colonies.  The  companies  were  authorized  to  en- 
gage as  colonists  any  of  the  subjects  of  England  who  should 
be  disposed  to  emigrate.  All  persons  being  English  subjects 
and  inhabiting  in  the  colonies,  and  every  one  of  their  children  born 
therein,  were  declared  to  have  and  possess  all  liberties,  franchises, 
and  immunities,  within  any  other  of  the  dominions  of  the  crown, 
to  all  intents  and  purposes,  as  if  they  had  been  abiding  and  born 
within  the  realm  of  England,  or  any  other  dominions  of  the 
crown.  The  patentees  were  to  hold  the  lands,  &c.,  in  the  colony, 
of  the  king,  his  heirs  and  successors,  as  of  the  manor  of  East 
Greenwich  in  the  county  of  Kent,  in  free  and  common  socage 
only,  and  not  in  capite  ;  and  were  authorized  to  grant  the  same  to 

1  Robertson's  America,  B.  9. 

2  Marsh.  Colon.  25 ;  1  Haz.  Coll.  50 ;  Robertson's  America,  B.  9. 
8  1  Haz.  Coll.  99  ;  Robertson's  America,  B.  9. 

*  Robertson's  America,  B.  9.  *  1  Haz.  Coll.  50. 


20  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

the  inhabitants  of  the  colonies  in  such  manner  and  form  and  for 
such  estates,  as  the  council  of  the  colony  should  direct.^ 

§43.  In  respect  to  political  government,  each  colony  was  to 
be  governed  by  a  local  council,  appointed  and  removable  at  the 
pleasure  of  the  crown,  according  to  the  royal  instructions  and 
ordinances  from  time  to  time  promulgated.  These  councils 
were  to  be  under  the  superior  management  and  direction  of  an- 
other council  sitting  in  England.  A  power  was  given  to  expel 
all  intruders,  and  to  lay  a  limited  duty  upon  all  persons  traffick- 
ing with  the  colony  ;  and  a  prohibition  was  imposed  upon  all 
the  colonists  against  trafficking  with  foreign  countries  under  the 
pretence  of  trade  from  the  mother  country  to  the  colonies.^ 

§  44.  The  royal  authority  soon  found  a  gratifying  employment 
in  drawing  up  and  establishing  a  code  of  fundamental  regula- 
tions for  these  colonies,  in  pursuance  of  the  power  reserved  in 
the  charter.  A  superintending  council  was  created  in  England. 
The  legislative  and  executive  powers  were  vested  in  the  presi- 
dent and  councils  of  the  colonies  ;  but  their  ordinances  were  not 
to  touch  life  nor  limb,  and  were  in  substance  to  conform  to  the 
laws  of  England,  and  were  to  continue  in  force  only  until  made 
void  by  the  crown,  or  the  council  in  England.  Persons  com- 
mitting high  offences  were  to  be  sent  .to  England  for  punish- 
ment ;  and  subordinate  offences  were  to  be  punished  at  the  dis- 
cretion of  the  president  and  council.  Allegiance  to  the  crown 
was  strictly  insisted  on  ;  and  the  Church  of  England  established. ^ 
The  royal  authority  was  in  all  respects  made  paramount  ;  and 
the  value  of  political  liberty  was  totally  overlooked,  or  deliber- 
ately disregarded. 

§  45.  The  charter  of  the  first  or  Virginia  colony  was  succes- 
sively altered  in  1609  and  1612,*  without  any  important  change 
in  its  substantial  provisions,  as  to  the  civil  or  political  rights  of 
the  colonists.  It  is  surprising,  indeed,  that  charters  securing  such 
vast  powers  to  the  crown,  and  such  entire  dependence  on  the 
part  of  the  emigrants,  should  have  found  any  favor  in  the  eyes 
either  of  the  proprietors  or  of  the  people.  By  placing  the  whole 
legislative  and  executive  powers  in  a  council  nominated  by  the 

1  1  Haz.  Coll.  50 ;  Marsh.  Colon  25,  26  ;  Robertson's  Amer.  B.  9. 

2  1  Haz.  Coll.  50 ;  Marsh.  Colon.  26. 
8  Marsh.  Colon.  27,  28. 

*  1  Haz.  Coll.  58,  72  ;  Marsh.  Colon.  44,  45,  47  ;  Robertson's  America,  B.  9. 


CH.  II.]  ORIGIN  AND  SETTLEMENT   OF  VIRGINIA.  21 

crown,  and  guided  by  its  instructions,  every  person  settling  in 
America  seems  to  have  been  bereaved  of  the  noblest  privileges 
of  a  free  man.  But  without  hesitation  or  reluctance,  the  pro- 
prietors of  both  colonies  prepared  to  execute  their  respective 
plans  ;  and  under  the  authority  of  a  charter,  which  would  now 
be  rejected  with  disdain  as  a  violent  invasion  of  the  sacred  and 
inalienable  rights  of  liberty,  the  first  permanent  settlements  of  th^ 
English  in  America  were  established.  From  this  period  the 
progress  of  the  two  provinces  of  Virginia  and  New  England 
forms  a  regular  and  connected  story.  The  former  in  the  South, 
and  the  latter  in  the  North,  may  be  considered  as  the  original  and 
parent  colonies,  in  imitation  of  which,  and  under  whose  shelter, 
all  the  others  have  been  successively  planted  and  reared.^ 

§  46.  The  settlements  in  Virginia  were  earliest  in  point  of 
date,  and  were  fast  advancing  under  a  policy,  which  subdivided 
the  property  among  the  settlers,  instead  of  retaining  it  in  com- 
mon, and  thus  gave  vigor  to  private  enterprise.  As  the  colony 
increased,  the  spirit  of  its  members  assumed  more  and  more  the 
tone  of  independence ;  and  they  grew  restless  and  impatient  for 
the  privileges  enjoyed  under  the  government  of  their  native  coun- 
try. To  quiet  this  uneasiness.  Sir  George  Yeardley,  then  the 
governor  of  the  colony,  in  1619,  called  a  general  assembly,  com- 
posed of  representatives  from  the  various  plantations  in  the  col- 
ony, and  permitted  them  to  assume  and  exercise  the  high  func- 
tions of  legislation.2  Thus  was  formed  and  established  the  first 
representative  legislature  that  ever  sat  in  America.  And  this 
example  of  a  domestic  parliament  to  regulate  all  the  internal 
concerns  of  the  country  was  never  lost  sight  of,  but  was  ever 
afterwards  cherished  throughout  America,  as  the  dearest  birthright 
of  freemen.  So  acceptable  was  it  to  the  people,  and  so  indispen- 
sable to  the  real  prosperity  of  the  colony,  that  the  council  in  Eng- 
land were  compelled,  in  1621,  to  issue  an  ordinance,  which  gave 
it  a  complete  and  permanent  sanction. ^  In  imitation  of  the  con- 
stitution of  the  British  Parliament,  the  legislative  power  was 
lodged  partly  in  the  governor,  who  held  the  place  of  the  sover- 
eign ;  partly  in  a  council  of  state  named  by  the  company  ;  and 

1  I  quote  the  very  words  of  Dr.  Robertson  throughout  this  passage  for  its  spirit  and 
general  truth.    Robert.  Hist,  of  America,  B.  9. 

2  Robertson's  America,  B  9  ;  Marsh.  Colon,  eh.  2,  p.  54. 

8  Henning,  Stat.  HI ;  Stith's  Virg.  App.  No.  4,  p.  321 ;  1  Chalra.  Annals,  54. 


22  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

partly  in  an  assembly  composed  of  representatives  freely  chosen 
by  the  people.  Each  branch  of  the  legislature  might  decide  by 
a  majority  of  voices,  and  a  negative  was  reserved  to  the  gov- 
ernor. But  no  law  was  to  be  in  force,  though  approved  by  all 
three  of  the  branches  of  the  legislature,  until  it  was  ratified  by  a 
general  court  of  the  company,  and  returned  under  its  seal  to  the 
polony. 1  The  ordinance  further  required  the  general  assembly,  as 
also  the  council  of  state,  ''  to  imitate  and  follow  the  policy  of  the 
form  of  government,  laws,  customs,  and  manner  of  trial  and  other 
administration  of  justice  used  in  the  realm  of  England,  as  near  as 
may  be."  The  conduct  of  the  colonists,  as  well  as  the  company, 
soon  afterwards  gave  offence  to  King  James  ;  and  the  disasters, 
which  accomplished  an  almost  total  destruction  of  the  colony  by 
the  successful  inroads  of  the  Indians,  created  much  discontent 
and  disappointment  among  the  proprietors  at  home.  The  king 
found  it  no  difficult  matter  to  satisfy  the  nation  that  an  inquiry 
into  their  conduct  was  necessary.  It  was  accordingly  ordered  ; 
and  the  result  of  that  inquiry,  by  commissioners  appointed  by 
himself,  was  a  demand  on  the  part  of  the  crown  of  a  surrender 
of  the  charters.^  The  demand  was  resisted  by  the  company  ;  a 
quo  warranto  was  instituted  against  them,  and  it  terminated,  as 
in  that  age  it  might  well  be  supposed  it  would,  in  a  judgment, 
pronounced  in  1624  by  judges  holding  their  offices  during  his 
pleasure,  that  the  franchises  were  forfeited  and  the  corporation 
should  be  dissolved.^. 

§  47.  It  does  not  appear  that  these  proceedings,  although  they 
have  met  with  severe  rebuke  in  later  times,  attracted  any  indig- 
nation or  sympathy  for  the  suffiarers  on  this  occasion.  The  royal 
prerogative  was  then  viewed  without  jealousy,  if  not  with  favor  ; 
and  the  rights  of  Englishmen  were  ill  defined  and  ill  protected 
under  a  reign  remarkable  for  no  great  or  noble  objects.  Dr.  Rob- 
ertson has  observed,  that  the  company,  like  all  unprosperous  so- 
cieties, fell  unpitied ;  *  and  the  nation  were  content  to  forget  the 
prostration  of  private  rights,  under  the  false  encouragements  held 
out  of  aid  to  the  colony  from  the  benignant  effi)rts  and  future 
counsels  of  the  crown. 

1  Robertson's  America,  B.  9;  Marsh.  Colon,  ch.  2,  p.  56;  1  Haz.  Coll.  131. 

2  In  1623.     See  1  Haz.  Coll.  155. 

8  Robertson's  America,  B.  9;  1  Haz.  Coll.  183;  Marsh.  Colon,  ch.  2,  p.  60,  62; 
Chalmers's  Annals. 
*  Robertson's  America,  B.  9. 


CH.  IL]  origin  and   settlement   of  VIRGINIA.  23 

§  48.  With  the  fall  of  the  charter  the  colony  came  under  the 
immediate  government  and  control  of  the  crown  itself ;  and  the 
king  issued  a  special  commission  appointing  a  governor  and  twelve 
counsellors,  to  whom  the  entire  direction  of  its  affairs  was  com- 
mitted.^ In  this  commission  no  representative  assembly  was  men- 
tioned ;  and  there  is  little  reason  to  suppose  that  James  the  First, 
who,  besides  his  arbitrary  notions  of  government,  imputed  the 
recent  disasters  to  the  existence  of  such  an  assembly,  ever 
intended  to  revive  it.  While  he  was  yet  meditating  upon  a  plan 
or  code  of  government,  his  death  put  an  end  to  his  projects,  which 
were  better  calculated  to  nourish  his  own  pride  and  conceit,  than 
to  subserve  the  permanent  interests  of  the  province. ^  Henceforth, 
however,  Virginia  continued  to  be  a  royal  province  until  the  period 
of  the  American  Revolution.^ 

§  49.  Charles  the  First  adopted  the  notions  and  followed  out  in 
its  full  extent  the  colonial  system  of  his  father.*  He  declared  the 
colony  to  be  a  part  of  the  empire  annexed  to  the  crown,  and  im- 
mediately subordinate  to  its  jurisdiction.  During  the  greater  part 
of  his  reign,  Virginia  knew  no  other  law  than  the  will  of  the  sov- 
ereign, or  his  delegated  agents ;  and  statutes  were  passed  and 
taxes  imposed  without  the  slightest  effort  to  convene  a  colonial 
assembly.  It  was  not  until  the  murmurs  and  complaints  which 
such  a  course  of  conduct  was  calculated  to  produce  had  betrayed 
the  inhabitants  into  acts  of  open  resistance  to  the  governor,  and 
into  a  firm  demand  of  redress  from  the  crown  against  his  oppres- 
sions, that  the  king  was  brought  to  more  considerate  measures. 
He  did  not  at  once  yield  to  their  discontents  ;  but  pressed,  as  he 
was,  by  severe  embarrassments  at  home,  he  was  content  to  adopt  a. 
policy  which  would  conciliate  the  colony  and  remove  some  of  its 
just  complaints.  He  accordingly  soon  afterwards  appointed  Sir 
William  Berkeley  governor,  with  powers  and  instructions  wliich 
breathed  a  far  more  benign  spirit.  He  was  authorized  to  proclaim, 
that  in  all  its  concerns,  civil  as  well  as  ecclesiastical,  the  colony 
should  be  governed  according  to  the  laws  of  England.  He  was 
directed  to  issue  writs  for  electing  representatives  of  the  people, 

1  1  Haz.  Coll.  189. 

2  Marsh.  Colon,  ch.  2,  p.  63,  64  ;  1  Haz.  Coll.  189. 
8  1  Haz.  Coll.  220,  225. 

*  It  seems  that  a  charter  was  subsequently  granted  by  Charles  the  Second  on  the 
10th  of  October,  1676,  but  it  contained  little  more  than  an  acknowledgment  of  the 
colony  as  an  immediate  dependency  of  the  crown.    2  Henning,  Stat.  531,  532. 


24  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

who  with  the  governor  and  council  should  form  a  general  assem- 
bly clothed  with  supreme  legislative  authority ;  and  to  establish 
courts  of  justice,  whose  proceedings  should  be  guided  by  the  forms 
of  the  parent  country.  The  rights  of  Englishmen  were  thus  in  a 
great  measure  secured  to  the  colonists  ;  and  under  the  government 
of  this  excellent  magistrate,  with  some  short  intervals  of  interrup- 
tion, the  colony  flourished  with  a  vigorous  growth  for  almost  forty 
years.^  The  revolution  of  1688  found  it,  if  not  in  the  practical 
possession  of  liberty,  at  least  with  forms  of  government  well  cal- 
culated silently  to  cherish  its  spirit. 

§  50.  The  laws  of  Virginia,  during  its  colonial  state,  do  not 
exhibit  as  many  marked  deviations,  in  the  general  structure  of  its 
institutions  and  civil  polity,  from  those  of  the  parent  country,  as 
those  in  the  Northern  colonies.  The  common  law  was  recognized 
as  the  general  basis  of  its  jurisprudence  ;  and  the  legislature,  with 
some  appearance  of  boast,  stated,  soon  after  the  restoration  of 
Charles  the  Second,  that  they  had  "  endeavored,  in  all  things,  as 
near  as  the  capacity  and  constitution  of  this  country  would  admit, 
to  adhere  to  those  excellent  and  often  refined  laws  of  England,  to 
which  we  profess  and  acknowledge  all  due  obedience  and  rever- 
ence.'* 2  The  prevalence  of  the  common  law  was  also  expressly 
provided  for  in  all  the  charters  successively  granted,  as  well  as 
by  the  royal  declaration,  when  the  colony  was  annexed  as  a  depen- 
dency to  the  crown.  Indeed,  there  is  no  reason  to  suppose,  that 
the  common  law  was  not  in  its  leading  features  very  acceptable  to 
the  colonists  ;  and  in  its  general  policy  the  colony  closely  followed 
in  the  steps  of  the  mother  country.  Among  the  earliest  acts  of 
the  legislature  we  find  the  Church  of  England  established  as  the 
only  true  church  ;  ^  and  its  doctrines  and  discipline  were  strictly 
enforced.  All  non-conformists  were  at  first  compelled  to  leave  the 
colony,  and  a  spirit  of  persecution  was  exemplified  not  far  behind 
the  rigor  of  the  most  zealous  of  the  Puritans.  The  clergy  of  the 
Established  Church  were  amply  provided  for  by  glebes  and  tithes, 

1  Robertson's  America,  B  9  ;  Marsh.  Amer.  Col.  ch.  2,  pp.  65,  66,  note.  I  have  not 
thoujrht  it  necessary  to  advert  particularly  to  the  state  of  thin<!;s  daring  the  disturbed 
period  of  the  Commonwealth.    Henning,  Virg.  Stat.  Introduction,  p.  13,  14. 

2  2  Henning,  Stat.  43.  Sir  William  Berkeley,  in  his  answer  to  the  questions  of  the 
Lords  Commissioners,  in  1671.  "  Contrary  to  the  laws  of  England,  we  never  did,  nor 
dare,  to  make  any  [law]  only  this,  that  no  sale  of  land  is  good  and  legal,  unless  within 
three  months  after  the  conveyance  it  be  recorded." 

3  [Jefferson,  Works,  I.  38 ;  Life  of  Madison  by  Rives,  I.  42 ;  Bancroft,  Hist,  of 
U.  S.,  I.  206 ;  Terrett  v.  Taylor,  9  Cranch,  43.] 


CH.  II.]  ORIGIN  AND  SETTLEMENT  OF  VIRGINIA.  25 

and  other  aids.  Non-residence  was  prohibited,  and  a  due  perform- 
ance of  parochial  duties  peremptorily  required.  The  laws,  indeed, 
respecting  the  church,  made  a  very  prominent  figure  during  the 
first  fifty  years  of  the  colonial  legislation.  The  first  law  allowing 
toleration  to  Protestant  dissenters  was  in  tlie  year  1699,  and  merely 
adopts  that  of  the  statute  of  the  1st  William  and  Mary.  Subject 
to  this,  the  Church  of  England  seems  to  have  maintained  an  ex- 
clusive supremacy  down  to  the  period  of  the  American  Revolution. 
Marriages,  except  in  special  cases,  were  required  to  be  celebrated 
in  the  parish  church,  and  according  to  the  rubric  in  the  common- 
prayer  book.  The  law  of  inheritance  of  the  parent  country  was 
silently  maintained  down  to  the  period  of  the  American  Revolu- 
tion ;  and  the  distribution  of  intestate  estates  was  closely  fash- 
ioned upon  the  same  general  model.  Devises  also  were  regulated 
by  the  law  of  England ;  ^  and  no  colonial  statute  appears  to  have 
been  made  on  that  subject  until  1748,  when  one  was  enacted  which 
contains  a  few  deviations  from  it,  probably  arising  from  local  cir- 
cumstances.2  One  of  the  most  remarkable  facts  in  the  juridical 
history  of  the  colony  is  its  steady  attachment  to  entails.  By  an 
act  passed  in  1705,  it  was  provided,  that  estates-tail  should  no 
longer  be  docked  by  fines  or  recoveries,  but  only  by  an  act  of  the 
legislature  in  each  particular  case.  And  though  this  was  after- 
wards modified,  so  as  to  allow  entails  to  be  destroyed  in  another 
manner,  where  the  estate  did  not  exceed  X200  sterling  in  value,^ 
yet  the  general  policy  continued  down  to  the  American  Revolution. 
In  this  respect,  the  zeal  of  the  colony  to  secure  entails  and  per- 
petuate inheritances  in  the  same  family  outstripped  that  of  the 
parent  country. 

§  51.  At  a  very  early  period  the  acknowledgment  and  registry 
of  deeds  and  mortgages  of  real  estate  were  provided  for,  and  the 
non-registry  was  deemed  a  badge  of  fraud.*  The  trial  by  jury, 
although  a  privilege  resulting  from  their  general  rights,  was 
guarded  by  special  legislation.  There  was  also  an  early  declara- 
tion, that  no  taxes  could  be  levied  by  the  governor  without  the 
consent  of  the  general  assembly ;  and  when  raised,  they  were  to 

1  I  refer  upon  these  subjects  to  Henning,  Stat.  122,  123,  144,  149,  155,  180,  240,  268, 
277,  434;  2  Hen.  Stat.  48,  50;  3  Hen.  Stat.  150,  170,  360,  441. 

2  5  Henning,  Stat.  456. 

8  3  Henning,  Stat.  320,  516 ;  4  Hen.  Stat.  400;   5  Hen.  Stat.  414;    1  Tuck.  Black. 
Coram.  App. 
*  1  Henning,  Stat.  248;  2  Hen.  Stat.  98 ;  3  Hen.  Stat  321. 


26  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

be  applied  according  to  the  appointment  of  the  legislature.  The 
burgesses,  also,  during  their  attendance  upon  the  assembly,  were 
free  from  arrest.  In  respect  to  domestic  trade,  a  general  freedom 
was  guaranteed  to  all  the  inhabitants  to  buy  and  sell  to  the  greatest 
advantage,  and  all  engrossing  was  prohibited.^  The  culture  of 
tobacco  seems  to  have  been  a  constant  object  of  solicitude  ;  and  it 
was  encouraged  by  a  long  succession  of  acts,  sufficiently  evincing 
the  public  feeling,  and  the  vast  importance  of  it  to  the  prosperity 
of  the  colony .2  We  learn  from  Sir  William  Berkeley's  answers  to 
the  Lords  Commissioners,  in  1671,  that  the  population"  of  the 
colony  was  at  that  time  about  40,000  ;  that  the  restrictions  of  the 
navigation  act,  cutting  off  all  trade  with  foreign  countries,  were 
very  injurious  to  them,  as  they  were  obedient  to  the  laws.  And 
"  this,"  says  he,  "  is  the  cause  why  no  small  or  great  vessels  are 
built  here ;  for  we  are  most  obedient  to  all  laws,  whilst  the  New 
England  men  break  through,  and  men  trade  to  any  place  that  their 
interest  leads  them."  This  language  is  sufficiently  significant  of 
the  restlessness  of  New  England  under  these  restraints  upon  its 
commerce.  But  his  answer  to  the  question  respecting  religious 
and  other  instruction  in  the  colony,  would  in  our  times  create  uni- 
versal astonishment.  "  I  thank  God,"  says  he,  "  there  are  no 
free  schools  nor  printing  ;  and  I  hope  we  shall  not  have  these  hun- 
dred years  ;  for  learning  has  brought  disobedience  and  heresy  and 
sects  into  the  world,  and  printing  has  divulged  them,  and  libels 
against  the  best  government.  God  keep  us  from  both."  ^  In  1680 
a  remarkable  change  was  made  in  the  colonial  jurisprudence,  by 
taking  all  judicial  power  from  the  assembly,  and  allowing  an 
appeal  from  the  judgments  of  the  General  Court  to  the  King  in 
Council.* 

1  1  Henning,  Stat.  290. 

2  See  1  Hen.  Stat.  l26,  and  Index,  tit.  Tobacco,  in  that  and  the  subsequent  volumes; 
2  Henning,  Stat.  514. 

8  2  Hen.  Stat.  511,  512,  514,  517  ;  1  Chalra.  Annals,  328;  3  Hutch.  Collect.  496. 
*  Marsh.  Colon,  ch.  5,  p.  163;  1  Chalm.  Annals,  325. 


CH.  III.]  SETTLEMENT   OF  NEW  ENGLAND.  27 


CHAPTER    III. 

ORIGIN   AND   SETTLEMENT   OF  NEW  ENGLAND. 

§  52.  We  may  now  advert  in  a  brief  manner  to  the  history  of 
the  Northern  or  Plymouth  Company.  That  company  pos- 
sessed fewer  resources  and  less  enterprise  than  the  Southern; 
and  though  aided  by  men  of  high  distinction,  and  among  others, 
by  the  public  spirit  and  zeal  of  Lord  Chief  Justice  Popham,  its 
first  efforts  for  colonization  were  feeble  and  discouraging.  Captain 
John  Smith,  so  well  known  in  the  history  of  Virginia  by  his 
successful  adventures  under  their  authority,  lent  a  transient 
lustre  to  their  attempts  ;  and  his  warm  descriptions  of  the  beauty 
and  fertility  of  the  country  procured  for  it  from  the  excited 
imagination  of  the  Prince,  afterwards  King  Charles  the  First,  the 
flattering  name  of  New  England^  a  name  which  effaced  from  it 
that  of  Yirghiia,  and  which  has  since  become  dear  beyond 
expression  to  the  inhabitants  of  its  harsh  but  salubrious  climate.^ 

§  53.  While  the  company  was  yet  languishing,  an  event 
occurred  which  gave  a  new  and  unexpected  aspect  to  its  pros- 
pects. It  is  well  known  that  the  religious  dissensions  consequent 
upon  the  Reformation,  while  they  led  to  a  more  bold  and  free 
spirit  of  discussion,  failed  at  the  same  time  of  introducing  a 
corresponding  charity  for  differences  of  religious  opinion.  Each 
successive  sect  entertained  not  the  slightest  doubt  of  its  own 
infallibility  in  doctrine  and  worship,  and  was  eager  to  obtain 
proselytes,  and  denounce  the  errors  of  its  opponents.  If  it  had 
stopped  here,  we  might  have  forgotten,  in  admiration  of  the  sin- 
cere zeal  for  Christian  truth,  the  desire  of  powder,  and  the  pride 
of  mind,  which  lurked  within  the  inner  folds  of  their  devotion. 
But,  unfortunately,  the  spirit  of  intolerance  was  abroad,  in  all 
its  stern  and  unrelenting  severity.  To  tolerate  errors  was  to 
sacrifice  Christianity  to  mere  temporal  interests.  Truth,  and 
truth  alone,  was  to  be  followed  at  the  hazard  of  all  consequences  ; 
and  religion  allowed  no  compromises   between  conscience    and 

1  Robertson's  America,  B.  10;  Marsh.  Amer.  CoL  ch.  3,  p.  77,  78;  I  Haz.  CoU. 
103.  147,  404  ;  1  Belknap's  New  Hampshire,  ch.  1. 


28  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

worldly  comforts.  Heresy  was  itself  a  sin  of  a  deadly  nature, 
and  to  extirpate  it  was  a  primary  duty  of  all  who  were  believers 
in  sincerity  and  truth.  Persecution,  therefore,  even  when  it 
seemed  most  to  violate  the  feelings  of  humanity  and  the  rights 
of  private  judgment,  never  wanted  apologists  among  those  of  the 
purest  and  most  devout  lives.  It  was  too  often  received  with 
acclamations  by  the  crowd,  and  found  an  ample  vindication  from 
the  learned  and  the  dogmatists ;  from  the  policy  of  the  civil 
magistrate,  and  the  blind  zeal  of  the  ecclesiastic.  Each  sect,  as  it 
attained  power,  exhibited  the  same  unrelenting  firmness  in  put- 
ting down  its  adversaries.^  The  papist  and  the  prelate,  the  Puri- 
tan and  the  Presbyterian,  felt  no  compunctions  in  the  destruction 
of  dissentients  from  their  own  faith.  They  uttered,  indeed,  loud 
complaints  of  the  injustice  of  their  enemies,  when  they  were 
themselves  oppressed  ;  but  it  was  not  from  any  abhorrence  to 
persecution  itself,  but  of  the  infamous  errors  of  the  persecutors. 
There  are  not  wanting  on  the  records  of  the  history  of  these 
times  abundant  proofs,  how  easily  sects,  which  had  borne  every 
human  calamity  with  unshrinking  fortitude  for  conscience'  sake, 
could  turn  upon  their  inoffensive,  but,  in  their  judgment,  erring 
neighbors  with  a  like  infliction  of  suffering.^  Even  adversity 
sometimes  fails  of  producing  its  usual  salutary  effects  of  modera- 
tion and  compassion,  when  a  blind  but  honest  zeal  has  usurped 
dominion  over  the  mind.  If  such  a  picture  of  human  infirmity 
may  justly  add  to  our  humility,  it  may  also  serve  to  admonish  us 
of  the  Christian  duty  of  forbearance.  And  he  who  can  look  with 
an  eye  of  exclusive  censure  on  such  scenes,  must  have  forgotten 
how  many  bright  examples  they  have  afforded  of  the  liveliest  vir- 
tue, the  most  persuasive  fidelity,  and  the  most  exalted  piety. 

1  Dr.  Robertson  has  justly  observed,  that  not  only  the  idea  of  toleration,  but  even 
the  word  itself,  in  the  sense  now  affixed  to  it,  was  then  unknown.*  Sir  James  Mackin- 
tosh, a  name  equally  glorious  in  judicial  and  ethical  philosophy,  has  remarked,  that  this 
giant  evil  (the  suppression  of  the  right  of  private  judgment  in  matters  of  religion)  had 
received  a  mortal  wound  from  Luther,  who,  in  his  warfare  with  Rome,  had  struck  a 
blow  against  all  human  authority,  and  unconsciously  disclosed  to  mankind  that  they  were 
entitled,  or  rather  bound,  to  form  and  utter  their  own  opinions,  and  most  of  all,  on  the 
most  deeply  interesting  subjects.  Dissertation  on  the  Progress  of  Ethical  Philosophy 
(Phila.  1832),  p.  36. 

2  Robertson's  America,  B.  10 ;  1  Belknap's  New  Hampshire,  ch.  3 ;  1  Chalm.  An- 
nals, p.  143,  145,  169,  189,  190,  191  ;  3  Hutch.  Hist.  Coll.  42. 

*  The  whole  passage  deserves  commendation  for  its  catholic  spirit  Robertson's  America, 
B.  10. 


CH.  III.]  SETTLEMENT   OF  NEW  ENGLAND.  29 

§  54.  Among  others  who  suffered  persecutions  from  the 
haughty  zeal  of  Elizabeth,  was  a  small  sect  called,  from  the 
name  of  their  leader,  Brownists,  to  Avhom  we  owe  the  founda- 
tion of  the  now  widespread  sect  of  Congregationalists  or  Inde- 
pendents. After  sufferings  of  an  aggravated  nature,  they  were 
compelled  to  take  refuge  in  Holland,  un^er  the  care  of  their 
pastor,  Mr.  John  Robinson,  a  man  distinguished  for  his  piety, 
his  benevolence,  and  his  intrepid  spirit.^  After  remaining  there 
some  years,  they  concluded  to  emigrate  to  America,  in  the  hope 
that  they  might  thus  perpetuate  their  religious  discipline,  and 
preserve  the  purity  of  an  apostolical  church.^  In  conjunction 
with  other  friends  in  England,  they  embarked  on  the  voyage 
with  a  design  of  settlement  on  Hudson's  River  in  New  York. 
But,  against  their  intention,  they  were  compelled  to  land  on  the 
shores  of  Cape  Cod,  in  the  depth  of  winter,  and  the  place  of 
their  landing  was  called  Plymouth,  which  has  since  become  so 
celebrated  as  the  first  permanent  settlement  in  New  England.^ 
Not  having  contemplated  any  plantation  at  this  place,  they 
had  not  taken  the  precaution  to  obtain  any  charter  from  the 
Plymouth  Company.  The  original  plan  of  their  colony,  how- 
ever, is  still  preserved ;  *  and  it  was  founded  upon  the  basis  of  a 
community  of  property,  at  least  for  a  given  space  of  time,  a 
scheme,  as  the  event  showed,  utterly  incompatible  with  the  ex- 
istence of  any  large  and  flourishing  colony.  Before  their  land- 
ing, they  drew  up  and  signed  a  volui^tary  compact  of  govern- 
ment, forming,  if  not  the  first,  at  least  the  best  authenticated 
case  of  an  original  social  contract  for  the  establishment  of  a  na- 
tion which  is  to  be  found  in  the  annals  of  the  world.  Philoso- 
phers and  jurists  have  perpetually  resorted  to  the  theory  of  such 
a  compact,  by  which  to  measure  the  rights  and  duties  of  gov- 
ernments and  subjects  ;  but  for  the  most  part  it  has  been  treated 
as  an  effort  of  imagination,  unsustained  by  the  history  or  prac- 
tice of  nations,  and  furnisliing  little  of  solid  instruction  for  the 
actual  concerns  of  life.  It  was  little  dreamed  of,  that  America 
should  furnish  an  example  of  it  in  primitive  and  almost  patri- 
archal simplicity. 

1  Belknap's  New  Hampshire,  eh.  3 ;  1  Doug.  Summ.  369. 

2  Morton's  Mem.  1  to  30. 

8  Robertson's  America,  B.  10 ;  Marsh.  Amer.  Col.  ch.  3,  p.  79,  80 ;  Morton's  Mem. 
31  to  35. 
*  I  Haz.  Coll,  87,  88 ;  Morton's  Mem.  App.  373. 


80  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

§  56.  On  the  11th  of  November,  1620,  these  humble  but  fear- 
less adventurers,  before  their  landing,  drew  up  and  signed  an 
original  compact,  in  which,  after  acknowledging  themselves  sub- 
jects of  the  crown  of  England,  they  proceed  to  declare :  "  Hav- 
ing undertaken,  for  the  glory  of  God  and  the  advancement  of  the 
Christian  faith  and  the  honor  of  our  king  and  country,  a  voyage 
to  plant  the  first  colony  in  the  northern  parts  of  Virginia,  we  do 
by  these  presents  solemnly  and  mutually,  in  the  presence  of  God 
and  of  one  another,  covenant  and  combine  ourselves  together 
into  a  civil  body  politic,  for  our  better  ordering  and  preservation 
and  furtherance  of  the  ends  aforesaid.  And  by  virtue  hereof  do 
enact,  constitute,  and  frame  such  just  and  equal  laws,  ordinances, 
acts,  constitutions,  and  officers  from  time  to  time  as  shall  be 
thought  most  meet  and  convenient  for  the  general  good  of  the 
colony  ;  unto  which  we  promise  all  due  submission  and  obe- 
dience." This  is  the  whole  of  the  compact,  and  it  was  signed  by 
forty-one  persons.^  It  is  in  its  very  essence  a  pure  democracy ; 
and  in  pursuance  of  it  the  colonists  proceeded  soon  afterwards  to 
organize  the  colonial  government,  under  the  name  of  the  Colony 
of  New  Plymouth,  to  appoint  a  governor  and  other  officers,  and 
to  enact  laws.  The  governor  was  chosen  annually  by  the  free- 
men, and  had  at  first  one  assistant  to  aid  him  in  the  discharge  of 
his  trust. 2  Four  others  were  soon  afterwards  added,  and  finally 
the  number  was  increased  to  seven. ^  The  supreme  legislative 
power  resided  in,  and  was  exercised  by,  the  whole  body  of  the 
male  inhabitants,  every  freeman,  who  was  a  member  of  the 
church,  being  admitted  to  vote  in  all  public  affairs.*  The  num- 
ber of  settlements  having  increased,  and  being  at  a  considerable 
distance  from  each  other,  a  house  of  representatives  was  estab- 
lished in  1639  ;  ^  the  members  of  which,  as  well  as  all  other  offi- 
cers, were  annually  chosen.  They  adopted  the  common  law  of 
England  as  the  general  basis  of  their  jurisprudence,  varying  it 
however  from  time  to  time  by  municipal  regulations  better 
adapted  to  their  situation,  or  conforming  more  exactly  to  their 

1  1  Haz.  Coll.  119;  Morton's  Mem.  37;  Marsh.  Colon,  ch.  3,  p.  80;  Robertson's 
America,  B.  10  ;  2  Hutch.  Hist.  455. 

'-2  Plymouth  Laws  (1685) ;  1  Haz.  Coll.  404,  408. 

3  Morton's  Mem.  110  ;  Prince's  Annals,  225  ;  2  Hutch.  Hist.  463,  465  ;  1  Haz.  Coll. 
404,408,411,412. 

*  Robertson's  America,  B.  10;  2  Hutch.  Hist.  467  ;  1  Haz.  Coll.  408,  411,  412,  414. 

s  2  Hutch.  Hist.  463. 


CH.  III.]  PLYMOUTH  COLONY  LAWS.  81 

stern  notions  of  the  absolute  authority  and  universal  obligation 
of  the  Mosaic  institutions.^ 

§56.  The  Plymouth  colonists  acted,  at  first,  altogether  under 
the  voluntary  compact  and  association  already  mentioned.  But 
they  daily  felt  embarrassments  from  the  want  of  some  general 
authority,  derived  directly  or  indirectly  from  the  crown,  which 
should  recognize  their  settlement  and  confirm  their  legislation. 
After  several  ineffectual  attempts  made  for  this  purpose,  they  at 
length  succeeded  in  obtaining,  in  January,  1629,  a  patent  from  the 
council  established  at  Plymouth,  in  England,  under  the  charter  of 
King  James  of  1620. ^  This  patent,  besides  a  grant  of  the  terri- 
tory upon  the  terms  and  tenure  of  the  original  patent  of  1620, 
included  an  authority  to  the  patentee  (William  Bradford)  and  his 
associates, "  to  incorporate  by  some  usual  or  fit  name  and  title  him 
or  themselves,  or  the  people  there  inhabiting  under  him  or  them, 
and  their  successors,  from  time  to  time,  to  frame  and  make  orders, 
ordinances,  and  constitutions,  as  well  for  the  better  government  of 
their  affairs  here,  and  the  receiving  or  admitting  any  into  his  or 
their  society,  as  also  for  the  better  government  of  his  or  their  peo- 
ple, or  his  or  their  people  at  sea  in  going  thither  or  returning 
from  thence  ;  and  the  same  to  put  or  cause  to  be  put  in  execution, 
by  such  officers  and  ministers,  as  he  or  they  shall  autliorize  and 
depute  ;  provided,  that  the  said  laws  and  orders  be  not  repugnant 
to  the  laws  of  England  or  the  frame  of  government  by  the  said 
president  and  council  [of  Plymouth  Company]  hereafter  to  be 
established."  ^ 

§  57.  This  patent  or  charter  seems  never  to  have  been  con- 
firmed by  the  crown ;  *  and  the  colonists  were  never,  by  any  act  of 
the  crown,  created  a  body  politic  and  corporate  with  any  legisla- 
tive powers.  They,  therefore,  remained  in  legal  contemplation  a 
mere  voluntary  association,  exercising  the  highest  powers  and  pre- 
rogatives of  sovereignty,  and  yielding  obedience  to  the  laws  and 
magistrates  chosen  by  themselves.^ 

1  Robertson's  America,  B.  10  ;  2  Hutch.  Hist.  462,  463,464  ;  Hubbard's  Hist.  ch.  10, 
p.  62 ;  Chalmers's  Annals,  p.  88. 

2  2  Hutch.  Hist.  464,  479 ;  1  Haz.  Coll.  298,  404,  468  ;  1  Chalmers's  Annals,  97,  98  ; 
1  Holmes's  Annals,  201. 

3  1  Haz.  Coll.  298,  404. 

*  Chalmers  says  (1  Chalm.  Annals,  97)  that  "  this  patent  was  not  confirmed  by  the 
crown,  though  the  contrary  has  been  affirmed  by  the  colonial  historians."  See  also 
Marsh.  Hist.  Colon,  ch.  3,  82,  83. 

^  Marsh.  Hist.  Colon,  ch.  3,  p.  82 ;  1  Chalm.  Annals,  87,  88,  97. 


82  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

§  58.  The  charter  of  1629  furnished  them,  however,  with  the 
color  of  delegated  sovereignty,  of  which  they  did  not  fail  to  avail 
themselves.  They  assumed  under  it  the  exercise  of  the  most  plen- 
ary executive,  legislative,  and  judicial  powers,  with  but  a  momen- 
tary scruple  as  to  their  right  to  inflict  capital  punishments.^  They 
were  not  disturbed  in  the  free  exercise  of  these  powers,  either 
through  the  ignorance  or  the  connivance  of  the  crown,  until  after 
the  restoration  of  Charles  the  Second.  Their  authority  under 
their  charter  was  then  questioned;  and  several  unsuccessful 
attempts  were  made  to  procure  a  confirmation  from  the  crown. 
They  continued  to  cling  to  it,  until,  in  the  general  shipwreck  of 
charters  in  1684,  theirs  was  overturned.  An  arbitrary  govern- 
ment was  then  established  over  them  in  common  with  the  other 
New  England  colonies  ;  and  they  were  finally  incorporated  into  a 
province  with  Massachusetts,  under  the  charter  granted  to  the  lat- 
ter by  William  and  Mary  in  1691. ^ 

§  59.  It  may  not  be  without  use  to  notice  a  few  of  the  laws 
which  formed  what  may  properly  be  deemed  the  fundamentals  of 
their  jurisprudence.  After  providing  for  the  manner  of  choosing 
their  governor  and  legislature,  as  above  stated,  their  first  attention 
seems  to  have  been  directed  to  the  establishment  of  "  the  free  lib- 
erties of  the  free-born  people  of  England."  It  was  therefore 
declared,^  almost  in  the  language  of  Magna  Charta,  that  justice 
should  be  impartially  administered  unto  all,  not  sold,  or  denied  ; 
that  no  person  should  suffer  "  in  respect  to  life,  limb,  liberty,  good 
name,  or  estate,  but  by  virtue  or  equity  of  some  express  law  of 
the  General  Court,  or  the  good  and  equitable  laws  of  our  nation 
suitable  for  us,  in  matters  which  are  of  a  civil  nature,  (as  by  the 
court  here  hath  been  accustomed,)  wherein  we  have  no  particular 
law  of  our  own"  ;  and  none  should  suffer  without  being  brought 
to  answer  by  due  course  and  process  of  law ;  that  in  criminal  and 
civil  cases  there  should  be  a  trial  by  jury  at  all  events  upon  a  final 
trial  on  appeal,  with  the  right  to  challenge  for  just  cause  ;  and  in 
capital  cases  a  peremptory  right  to  challenge  twenty  jurors  as  in 
England  ;  that  no  party  should  be  cast  or  condemned,  unless  upon 
the  testimony  of  two  sufficient  witnesses,  or  other  sufficient  evi- 

1  2  Hutch.  Hist.  464,  465,  467 ;  Chalm.  Annals,  88.    [Palfrey,  Hist,  of  New  England, 
I.  542.] 

2  2  Hutch.  Hist.  479,  480;  Chalm.  Annals,  97,  98. 

8  In  1636.      See  1  Haz.  Coll.  404,  408;  Id.  178;  Plymouth  Colony  Laws  (edit. 
1685; ;  1  Haz.  Coll  411,  414,  419. 


CH.  III.]  PLYMOUTH  COLONY  LAWS.  83 

dence  or  circumstances,  unless  otherwise  specially  provided  by 
law  ;  that  all  persons  of  the  age  of  twenty-one  years,  and  of  sound 
memory,  should  have  power  to  make  wills  and  other  lawful  aliena- 
tions of  their  estate,  whether  they  were  condemned  or  excommuni- 
cated, or  other;  except  that  in  treason  their  personal  estate 
should  be  forfeited,  but  their  real  estate  was  still  to  be  at  their  dis- 
posal. All  processes  were  directed  to  be  in  the  king's  name.^  All 
trials  in  respect  to  land  were  to  be  in  the  county  where  it  lay ;  and 
all  personal  actions  where  one  of  the  parties  lived ;  and  lands 
and  goods  were  liable  to  attachment  to  answer  the  judgment  ren- 
dered in  any  action.  All  lands  were  to  descend  according  to  the 
free  tenure  of  lands  of  East  Greenwich,  in  the  county  of  Kent ; 
and  all  entailed  lands  according  to  the  law  of  England.  All  the 
sons  were  to  inherit  equally,  except  the  eldest,  who  was  to  have  a 
double  share.  If  there  were  no  sons,  all  the  daughters  were  to 
inherit  alike.  Brothers  of  the  whole  blood  were  to  inherit ;  and 
if  none,  then  sisters  of  the  whole  blood.  All  conveyances  of  land 
were  to  be  by  deed  only,  acknowledged  before  some  magistrate, 
and  recorded  in  the  public  records.  Among  capital  offences  were 
enumerated,  without  any  discrimination,  idolatry,  blasphemy,  trea- 
son, murder,  witchcraft,  bestiality,  sodomy,  false  witness,  man-steal- 
ing, cursing  or  smiting  father  or  mother,  rape,  wilful  burning  of 
houses  and  ships,  and  piracy  ;  while  certain  other  offences  of  a 
nature  quite  as  immoral  and  injurious  to  society,  received  a  far 
more  moderate  punishment.  Undoubtedly  a  reverential  regard 
for  the  Scriptures  placed  the  crimes  of  idolatry,  blasphemy,  and 
false  witness,  and  cursing  and  smiting  father  and  mother,  among 
the  capital  offences.  And,  as  might  well  be  presumed  from  the 
religious  sentiments  of  the  people,  ample  protection  was  given  to 
the  church ;  and  the  maintenance  of  a  public  orthodox  ministry 
and  of  public  schools  was  carefully  provided  for.^ 

§  60.  Compared  with  the  legislation  of  some  of  the  colonies 
during  an  equal  period,  the  laws  of  the  Plymouth  Colony  will  be 
found  few  and  brief.  This  resulted  in  some  measure  from  the  nar- 
row limits  of  the  population  and  business  of  the  colony ;  but  in  a 
greater  measure  from  their  reliance  in  their  simple  proceedings 
upon  the  general  principles  of  the  common  law. 

1  1  Haz.  Coll.  473  ;  Plymouth  Colony  Laws  (1688),  p.  16. 

2  More  ample  information  upon  all  these  suhjects  will  be  furnished  by  an  examination 
of  the  Plymouth  Colony  Laws,  first  printed  in  1685. 

VOL.  I.  3 


34  HISTORY  OF  THE  COLONIES.  [BOOK  I. 


CHAPTER    lY. 


MASSACHUSETTS. 


§  61.  About  the  period  when  the  Plymouth  colonists  completed 
their  voyage,  (1620,)  James  the  First,  with  a  view  to  promote 
more  effectually  the  interests  of  the  second  or  northern  company, 
granted  ^  to  the  Duke  of  Lenox  and  others  of  the  company  a  new 
charter,  by  which  its  territories  were  extended  in  breadth  from  the 
40th  to  the  48th  degree  of  north  latitude  ;  and  in  length  by  all  the 
breadth  aforesaid  throughout  the  mainland  from  sea  to  sea,  ex- 
cluding, however,  all  possession  of  any  other  Christian  prince,  and 
all  lands  within  the  bounds  of  the  southern  colony .^  To  the  ter- 
ritory thus  bounded  he  affixed  the  name  of  New  England,  and  to 
the  corporation  itself  so  created  the  name  of  "  The  Council  estab- , 
lished  at  Plymouth  in  the  county  of  Devon,  for  the  planting,  ruling, 
ordering,  and  governing  of  New  England  in  America."  ^  The 
charter  contains  the  names  of  the  persons  who  were  to  constitute 
the  first  council,  with  power  to  fill  vacancies  and  keep  up  a  per- 
petual succession  of  counsellors  to  the  number  of  forty.  The 
power  to  purchase,  hold,  and  sell  lands,  and  other  usual  powers 
of  corporations,  are  then  conferred  on  them,  and  special  authority 
to  make  laws  and  ordinances  to  regulate  the  admission  and  trade 
of  all  persons  with  the  plantation ;  to  dispose  of  their  lands  ;  to 
appoint  and  remove  governors  and  other  officers  of  the  plantation  ; 
to  establish  all  manner  of  orders,  laws  and  directions,  instructions, 
forms  and  ceremonies  of  government  and  magistracy,  so  that  the 
same  be  not  contrary  to  the  laws  and  statutes  of  England ;  to  cor- 
rect, punish,  pardon,  govern,  and  rule  all  inhabitants  of  the  colony 
by  such  laws  and  ordinances,  and  in  defect  thereof,  in  cases  of 
necessity,  according  to  the  good  discretions  of  their  governors  and 
officers  respectively,  as  well  in  cases  capital  and  criminal  as  civil, 
both  marine  and  others,  so  always  that  the  same  ordinances  and 
proceedings  be,  as  near  as  conveniently  may  be,  agreeable  to  the 
laws,  statutes,  government,  and  policy  of  England  ;  and  finally  to 

1  Nov.  3,  1620;  1  Doug.  Summ.  406,  &c. 

2  1  Haz.  Coll.  103,  105,  &c.  s  1  Haz.  Coll.  99,  103,  106,  110,  111. 


CH.  IV.]  MASSACHUSETTS.  85 

regulate  trade  and  traffic  to  and  from  the  colony,  prohibiting  the 
same  to  all  persons  not  licensed  by  the  corporation.^  The  charter 
further  contains  some  extraordinary  powers  in  cases  of  rebellion, 
mutiny,  misconduct,  illicit  trade,  and  hostile  invasions,  which  it  is 
not  necessary  to  particularize.  The  charter  also  declares  that  all 
the  territory  shall  be  holden  of  the  crown,  as  of  the  royal  manor 
of  East  Greenwich,  in  Kent  County,  in  free  and  common  socage, 
and  not  in  capite,  nor  by  knight  service  ;  ^  and  that  all  subjects, 
inhabitants  of  the  plantation,  and  their  children  and  posterity  born 
within  the  limits  thereof,  shall  have  and  enjoy  all  liberties  and 
franchises  and  immunities  of  free  denizens  and  natural  subjects 
within  any  other  of  the  dominions  of  the  crown,  to  all  intents  and 
purposes,  as  if  they  had  been  abiding  and  born  within  the  kingdom 
of  England,  or  any  other  dominions  of  the  crown. ^  The  charter 
also  authorized  the  council  to  transport  to  the  plantation  any  sub- 
jects, or  strangers  who  were  willing  to  become  subjects  and  live 
under  the  king's  allegiance.  But  it  prohibited  papists  to  be  trans- 
ported, by  requiring  all  persons  going  there  to  take  the  oath  of 
supremacy,  and  authorizing  the  president  of  the  council  to  admin- 
ister the  oath.* 

§  62.  Some  of  the  powers  granted  by  this  charter  were  alarm- 
ing to  many  persons,  and  especially  those  which  granted  a 
monopoly  of  trade. ^  The  efforts  to  settle  a  colony  within  the  ter- 
ritory were  again  renewed,  and  again  were  unsuccessful.^  The 
spirit  of  religion,  however,  soon  effected  what  the  spirit  of  com- 
merce had  failed  to  accomplish.  The  Puritans,  persecuted  at 
home,  and  groaning  under  the  weight  of  spiritual  bondage,  cast  a 
longing  eye  towards  America  as  an  ultimate  retreat  for  themselves 
and  their  children.  They  were  encouraged  by  the  information 
that  the  colonists  at  Plymouth  were  allowed  to  worship  their  Crea- 
tor according  to  the  dictates  of  their  consciences,  without  moles- 
tation. They  opened  a  negotiation,  through  the  instrumentality 
of  a  Mr.  White,  a  distinguished  non-conforming  minister,  with  the 
council  established  at  Plymouth ;  and  in  March,  1627,  procured 
from  them  a  grant,  to  Sir  Henry  Rosewell  and  others,  of  all  that 
part  of  New  England  lying  three  miles  south  of  Charles  River  and 

1  1  Haz.  Coll.  109,  no,  112,  113,  141. 

2  Ibid.  111.  8  Ibid.  117. 
*  Ibid.  117. 

^  Marsh.  Colon,  ch.  3,  p.  83 ;  Chalm.  Annals,  p.  81,  83. 
6  Robertson's  America,  B.  10 ;  Chalm.  Annals,  90. 


36  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

three  miles  north  of  Merrimack  River,  extending  from  the  Atlantic 
to  the  South  Sea.^ 

§  63.  Other  persons  were  soon  induced  to  miite  with  them,  if  a 
charter  could  be  procured  from  the  crown  which  should  secure  to 
the  adventurers  the  usual  powers  of  government.  Application  was 
made  for  this  purpose  to  King  Charles,  who  accordingly,  in  March, 
1628,  granted  to  the  grantees  and  their  associates  the  most  ample 
powers  of  government.  The  charter  confirmed  to  them  the  terri- 
tory already  granted  by  the  council  established  at  Plymouth,  to  be 
liolden  of  the  crown,  as  of  the  royal  manor  of  East  Greenwich, 
"  in  free  and  common  socage,  and  not  in  capite,  nor  by  knight's 
service,  yielding  to  the  crown  one  fifth  part  of  all  ore  of  gold  and 
silver,'^  &c.,  with  the  exception,  however,  of  any  part  of  the  terri- 
tory actually  possessed  or  inhabited  by  any  other  Christian  prince 
or  state,  or  of  any  part  of  it  within  the  bounds  of  the  southern 
colony  [of  Virginia]  granted  by  King  James.  It  also  created  the 
associates  a  body  politic  by  the  name  of  "  The  Governor  and  Com- 
pany of  the  Massachusetts  Bay  in  New  England,"  with  the  usual 
powers  of  corporations.  It  provided  that  the  government  should 
be  administered  by  a  governor,  a  deputy-governor,  and  eighteen 
assistants,  from  time  to  time  elected  out  of  the  freemen  of  the  com- 
pany, which  officers  should  have  the  care  of  the  general  business 
and  affairs  of  the  lands  and  plantations,  and  the  government  of 
the  people  there  ;  and  it  appointed  the  first  governor,  deputy-gov- 
ernor, and  assistants  by  name.  It  further  provided  that  a  court 
or  quorum  for  the  transaction  of  business  should  consist  of  the 
governor,  or  the  deputy-governor,  and  seven  or  more  assistants, 
which  should  assemble  as  often  as  once  a  month  for  that  purpose, 
and  also  that  four  great  general  assemblies  of  the  company  should 
be  held  in  every  year.  In  these  great  and  general  assemblies, 
(which  were  composed  of  the  governor,  deputy,  assistants,  and 
freemen  present,)  freemen  were  to  be  admitted  free  of  the  com- 
pany, officers  were  to  be  elected,  and  laws  and  ordinances  for  the 
good  and  welfare  of  the  colony  made  ;  "  so  as  such  laws  and  ordi- 
nances be  not  contrary  or  repugnant  to  the  laws  and  statutes  of  this 
our  realm  of  England."  At  one  of  these  great  and  general  assem- 
blies held  in  Easter  Term,  the  governor,  deputy,  and  assistants, 

1  These  are  not  the  deseriptive  words  of  the  grant,  but  a  statement  of  the  substance 
of  it.  The  grant  is  recited  in  the  charter  in  Hutchinson's  Collection,  p.  1,  &c.,  and  in 
jthe  Colonial  and  Province  Laws  of  Massachusetts,  printed  in  1814. 


CH.  IV.]  MASSACHUSETTS.  37 

and  other  officers  were  to  be  annually  chosen  by  the  company 
present.  The  company  were  further  authorized  to  transport  any 
subjects  or  strangers  willing  to  become  subjects  of  the  crown  to 
the  colony,  and  to  carry  on  trade  to  and  from  it,  without  custom 
or  subsidy  for  seven  years,  and  were  to  be  free  of  all  taxation  of 
imports  or  exports  to  and  from  the  English  dominion  for  the  space 
of  twenty-one  years,  with  the  exception  of  a  five  per  cent  duty. 
The  charter  further  provided  that  all  subjects  of  the  crown  who 
should  become  inhabitants,  and  their  children  born  there,  or  on 
the  seas  going  or  returning,  should  enjoy  all  liberties  and  immuni- 
ties of  free  and  natural  subjects,  as  if  they  and  every  of  them  were 
born  within  the  realm  of  England.  Full  legislative  authority  was 
also  given,  subject  to  the  restriction  of  not  being  contrary  to  the 
laws  of  England,  as  also  for  the  imposition  of  fines  and  mulcts 
"  according  to  the  course  of  other  corporations  in  England."  ^ 
Many  other  provisions  were  added,  similar  in  substance  to  those 
found  in  the  antecedent  colonial  charters  of  the  crown. 

§  64.  Such  were  the  original  limits  of  the  colony  of  Massachu- 
setts Bay,  and  such  were  the  powers  and  privileges  conferred  on 
it.  It  is  observable  that  the  whole  structure  of  the  charter  pre- 
supposes the  residence  of  the  company  in  England,  and  the  trans- 
action of  all  its  business  there.  The  experience  of  the  past  had 
not  sufficiently  instructed  the  adventurers  that  settlements  in 
America  could  not  be  well  governed  by  corporations  resident 
abroad  ;  ^  or  if  any  of  them  had  arrived  at  such  a  conclusion,  there 
were  many  reasons  for  presuming  that  the  crown  would  be  jealous 
of  granting  powers  of  so  large  a  nature,  which  were  to  be  exer- 
cised at  such  a  distance  as  would  render  control  or  responsibility 
over  them  wholly  visionary.  They  were  content,  therefore,  to  get 
what  they  could,  hoping  that  the  future  might  furnish  more  ample 
opportunities  for  success ;  that  their  usurpations  of  authority 
would  not  be  closely  watched  ;  or  that  there  might  be  a  silent 
indulgence,  until  the  policy  of  the  crown  might  feel  it  a  duty  to 
yield,  what  it  was  now  useless  to  contend  for,  as  a  dictate  of  wis- 
dom and  justice.^  The  charter  did  not  include  any  clause  provid- 
ing for  the  free  exercise  of  religion  or  the  rights  of  conscience, 
(as  has  been  often  erroneously  supposed.)*     It  gave  authority  to 

1  Hutch.  Coll.  p.  1  -23  ;  1  Haz.  Coll.  239  ;  1  Chalm.  Annals,  p.  137. 

2  Chalm.  Annals,  81  ;  Robertson's  Hist.  America,  B.  10.  ^ 
8  Robertson's  America,  B.  10;  1  Chalm.  Annals,  141. 

*  1  Chalmers's  Annals,  141  ;  Robertson's  America,  B.  10,  and  note. 


38  HISTORY  OF  THE   COLONIES.  [BOOK  I. 

the  governor  and  other  officers  to  administer  the  oath  of  suprera- 
acy,  thereby  probably  intending  to  discourage  the  settlement  of 
papists  in  the  colony.^  But  there  is  nothing  in  it  which  exhibits 
on  the  part  of  the  monarch  any  disposition  to  relax  in  favor  of  the 
Puritans  the  severe  maxims  of  conformity  so  characteristic  of  his 
reign.2  The  first  emigrants,  however,  paid  no  attention  to  this  cir- 
cumstance ;  and  the  very  first  church  planted  by  them  was  inde- 
pendent in  all  its  forms,  and  repudiated  every  connection  with 
Episcopacy  or  a  liturgy  .^ 

§  65,  But  a  bolder  step  was  soon  afterwards  taken  by  the  com- 
pany itself.  It  was  ascertained  that  little  success  would  attend 
the  plantation,  so  long  as  its  affairs  were  under  the  control  of  a 
distant  government,  knowing  little  of  its  wants,  and  insensible  to 
its  difficulties.*  Many  persons,  indeed,  possessed  of  fortune  and 
character,  warmed  with  religious  zeal,  or  suffering  under  religious 
intolerance,  were  ready  to  embark  in  the  enterprise,  if  the  corpo- 
ration should  be  removed,  so  that  the  powers  of  government  might 
be  exercised  by  the  actual  settlers.^  The  company  had  already 
become  alarmed  at  the  extent  of  their  own  expenditures,  and  there 
were  but  faint  hopes  of  any  speedy  reimbursement.  They  enter- 
tained some  doubts  of  the  legality  of  the  course  of  transferring  the 
charter.  But  at  length  it  was  determined,  in  August,  1629,  "  by 
the  general  consent  of  the  company,  that  the  government  and 
patent  should  be  settled  in  New  England."  ^  This  resolution 
infused  new  life  into  the  association  ;  and  the  next  election  of  offi- 
cers was  made  from  among  those  proprietors  who  had  signified  an 
intention  to  remove  to  America.  The  government  and  charter 
were  accordingly  removed ;  and  henceforth  the  whole  manage- 
ment of  all  the  affairs  of  the  colony  was  confided  to  persons  and 
magistrates  resident  within  its  own  bosom.  The  fate  of  the  col- 
ony was  thus  decided ;  and  it  grew  with  a  rapidity  and  strength 
that  soon  gave  it  a  great  ascendency  among  the  New  England  set- 
tlements, and  awakened  the  jealousy,  distrust,  and  vigilance  of  the 
parent  country. 

1  But  see  I  Grahame,  Hist  ch.  1,  p.  245,  note. 

2  Robertson's  America,  Book  10,  and  note;  1  Chalm.  Annals,  141. 

3  Robertson's  America,  B.  10;  Hutch.  Coll.  201 ;  1  Chalm.  Annals,  143,  144,  145. 
*  1  Chalmers's  Annals,  94,  95. 

5  1  Hutch.  Hist.  12,  13;  1  Chalmers's  Ann.  150,  151. 

6  1  Hutch.  Hist.  13;   Hutch.   Coll.  2.5,  26;    Robertson's  America,  B.  10;   Marsh. 
Colonies,  ch.  3,  p.  89  ;  1  Holmes's  Annals,  197  ;  1  Chalm.  Annals,  150. 


CH.  IV.]  MASSACHUSETTS.  89 

§  6Q.  It  has  been  justly  remarked,  that  this  transaction  stands 
alone  in  the  history  of  English  colonization.^  Tlie  power  of  the 
corporation  to  make  the  transfer  has  been  seriously  doubted,  and 
even  denied.'^  But  the  boldness  of  the  step  is  not  more  striking 
than  the  silent  acquiescence  of  the  king  in  permitting  it  to  take 
place.  The  proceedings  of  the  royal  authority  a  few  years  after 
sufficiently  prove  that  the  royal  acquiescence  was  not  intended  as 
any  admission  of  right.  The  subsequent  struggles  between  the 
crown  and  the  colony,  down  to  the  overthrow  of  the  charter,  under 
the  famous  qm  warranto  proceedings,  in  1684,  manifest  a  disposi- 
tion on  the  part  of  the  colonists  to  yield  nothing  which  could  be 
retained ;  and,  on  the  part  of  the  crown,  to  force  them  into  absolute 
subjection. 

§  67.  The  government  of  the  colony,  immediately  after  the 
removal  of  the  charter,  was  changed  in  many  important  features  ; 
but  its  fundamental  grants  of  territory,  powers,  and  privileges 
were  eagerly  maintained  in  their  original  validity.^  It  is  true,  as 
Dr.  Robertson  has  observed,*  that,  as  soon  as  the  Massachusetts 
emigrants  had  landed  on  these  shores,  they  considered  themselves, 
for  many  purposes,  as  a  voluntary  association,  possessing  the 
natural  rights  of  men  to  adopt  that  mode  of  government  which 
was  most  agreeable  to  themselves,  and  to  enact  such  laws  as  were 
conducive  to  their  own  welfare.  They  did  not,  indeed,  surrender 
up  their  charter,  or  cease  to  recognize  its  obligatory  force.^  But 
they  extended  their  acts  far  beyond  its  expression  of  powers  ;  and, 
while  they  boldly  claimed  protection  from  it  against  the  royal 
demands  and  prerogatives,  they  nevertheless  did  not  feel  that  it 
furnished  any  limit  upon  the  freest  exercise  of  legislative,  execu- 
tive, or  judicial  functions.  They  did  not  view  it  as  creating  an 
English  corporation,  under  the  narrow  construction  of  the  com- 
mon law,  but  as  affording  the  means  of  founding  a  broad  political 
government,  subject  to  the  crown  of  England,  but  yet  enjoying 
many  exclusive  privileges.^ 

1  Robertson's  America,  B.  10. 

2  See  1  Hutch.  Hist.  410,  415;  1  Chalmers's  Annals,  139,  141, 142,  148,  151,  173. 
8  1  Hutch.  Hist.  25  ;  Hutch.  Coll.  199,  200,  203,  205,  207. 

*  Robertson's  America,  B.  10. 

6  Hutch.  Coll   199,  203. 

e  1  Hutch.  Hist.  35,  36,  37,  410,  507,  529  ;  Hutch.  Coll.  196,  199,  200,  203,  205, 
207,  329,  330,  417,  418,  420,  477  ;  1  Hutch.  Hist.  410,  415  ;  1  Chalmers's  Annals,  151, 
153,  157,  161  ;  Robertson's  America,  B.  10;  Marsh.  Hist.  Colon,  ch.  5,  139. 


40  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

§  68.  The  General  Court,  in  their  address  to  Parliament,  in 
1646,  in  answer  to  tlie  remonstrance  of  certain  malecontents,  used 
the  following  language :  ^  "  For  our  government  itself,  it  is  framed 
according  to  our  charter  and  the  fundamental  and  common  laws 
of  England,  and  carried  on  according  to  the  same,  (taking  the 
words  of  eternal  truth  and  righteousness  along  with  them,  as  that 
rule  by  which  all  kingdoms  and  jurisdictions  must  render  account 
of  every  act  and  administration  in  the  last  day,)  with  as  bare 
allowance  of  the  disproportion  between  such  an  ancient,  populous, 
wealthy  kingdom,  and  so  poor  an  infant,  thin  colony,  as  common 
reason  can  afford."  And  they  then  proceeded  to  show  the  truth 
of  their  statement  by  drawing  a  parallel,  setting  down  in  one 
column  the  fundamental  and  common  laws  and  customs  of  Eng- 
land, beginning  with  Magna  Charta,  and  in  a  corresponding 
column  their  own  fundamental  laws  and  customs.  Among  other 
parallels,  after  stating  that  the  supreme  authority  in  England  is  in 
the  high  court  of  Parliament,  they  stated  :  "  The  highest  authority 
here  is  in  the  General  Court,  both  by  our  charter  and  by  our  own 
positive  laws." 

§  69.  For  three  or  four  years  after  the  removal  of  the  charter,  the 
governor  and  assistants  were  chosen,  and  all  the  business  of  the 
government  was  transacted,  by  the  freemen  assembled  at  large  in  a 
General  Court.  But  the  members  having  increased,  so  as  to  make 
a  general  assembly  inconvenient,  an  alteration  took  place,  and  in 
1634  the  towns  sent  representatives  to  the  General  Court.  They 
drew  up  a  general  declaration  that  the  General  Court  alone  had 
power  to  make  and  establish  laws  and  to  elect  officers,  to  raise 
moneys  and  taxes,  and  to  sell  lands ;  and  that  therefore  every 
town  might  choose  persons  as  representatives,  not  exceeding  two, 
who  should  have  the  full  power  and  voices  of  all  the  freemen, 
except  in  the  choice  of  officers  and  magistrates,  wherein  every 
freeman  was  to  give  his  own  vote.^  The  system  thus  proposed 
was  immediately  established  by  common  consent,^  although  it  is 
nowhere  provided  for  in  the  charter ;  and  thus  was  formed  the 
second  house  of  representatives  (the  first  being  in  Virginia)  in 

1  1  Hutch.  Hist.  145,  146 ;  Hatch.  Coll.  199,  &c.  [See  Palfrey,  Hist  of  New- 
England,  II.  174.] 

2  Robertson's  America,  B.  10;  1  Hutch.  Hist.  35,  36,  203  ;  1  Haz.  Coll.  320. 

«  Col.  and  rrovince  Laws  (1814),  ch.  35,  p.  97 ;  Hutch.  Coll.  203,  &c. ;  1  Hutch. 
Hist.  449. 


CH.  IV.]  MASSACHUSETTS.  41 

any  of  the  colonies.^  At  first,  the  whole  of  the  magistrates  (or 
assistants)  and  the  representatives  sat  together,  and  acted  as  one 
body  in  enacting  all  laws  and  orders ;  but  at  length,  in  1644,  they 
separated  into  two  distinct  and  independent  bodies,  each  of  which 
possessed  a  negative  upon  the  acts  of  the  other.^  This  course  of 
proceeding  continued  until  the  final  dissolution  of  the  charter. 

§  70.  It  may  be  well  to  state,  in  this  connection,  that  the  council 
established  in  Plymouth  in  a  very  short  period  after  the  grant  of 
the  Massachusetts  charter  (in  1635)  finally  surrendered  their  own 
patent  back  to  the  crown.  They  had  made  other  grants  of  terri- 
tory, which  we  shall  hereafter  have  occasion  to  notice,  which  had 
greatly  diminished  the  value  as  well  as  importance  of  their  char- 
ter. But  the  immediate  cause  of  the  surrender  was  the  odious 
extent  of  the  monopolies  granted  to  them,  which  roused  the  atten- 
tion of  Parliament  and  of  the  nation  at  large,  and  compelled  them 
to  resign  what  they  could  scarcely  maintain  against  the  strong 
current  of  public  opinion.  The  surrender,  so  far  from  working 
any  evil,  rather  infused  new  life  into  the  colonies  which  sprung 
from  it,  by  freeing  them  from  all  restraint  and  supervision  by  a  su- 
perior power,  to  which  they  might  perhaps  have  been  held  account- 
able.^ Immediately  after  this  surrender  legal  proceedings  were 
instituted  against  the  proprietors  of  the  Massachusetts  charter. 
Those  who  appeared  were  deprived  of  their  franchises.  But  for- 
tunately the  measure  was  not  carried  into  complete  execution 
against  the  absent  proprietors  acting  under  the  charter  in 
America.^ 

§  71.  After  the  fall  of  the  first  colonial  charter  in  1684,^  Mas- 
sachusetts remained  for  some  years  in  a  very  disturbed  state  under 
the  arbitrary  power  of  the  crown.  At  length  a  new  charter  was 
in  1691  granted  to  the  colony  by  William  and  Mary ;  and  it 
henceforth  became  known  as  a  province,  and  continued  to  act 
under  this  last  charter  until  after  the  Revolution.  The  charter 
comprehended  within  its  territorial  limits  all  the  old  colony  of  the 

1  1  Hutch.  Hist,  35,  36,  37,  94,  note,  449  ;  1  Holmes's  Annals,  222  ;  1  Haz.  Coll.  320, 
321 ;  1  Chalmers's  Annals,  157.     [Palfrey,  Hist,  of  New  England,  I.  371.] 

2  1  Hutch.  Hist.  449;  1  Chalmers's  Annals,  166;  Col.  and  Province  Laws  (1814), 
ch.  31,  p.  88 ;  Hutch.  Coll.  205  ;  1  Doug.  Summ.  431. 

8  1  Holmes's  Annals,  227  ;  1  Haz.  Coll.  390,  393  ;  1  Chalmers's  Annals,  94,  95,  99. 
*  1  Holmes's  Annals,  227  ;    Hutch.  Coll.  101,  104 ;   2  Haz.  Coll.  423,  425  ;  3  Chal- 
mers's Annals,  161. 
^  1  Holmes's  Annals,  412. 


42  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

Massachusetts  Bay,  the  colony  of  New  Plymouth,  the  province  of 
Maine,  the  territory  called  Acadie,  or  Nova  Scotia,  and  all  the 
lands  lying  between  Nova  Scotia  and  Maine  ;  and  incorporated 
the  whole  into  one  province  by  the  name  of  the  Province  of  the 
Massachusetts  Bay  in  New  England,  to  be  holden  as  of  the  royal 
manor  of  East  Greenwich,  in  the  county  of  Kent.  It  confirmed 
all  prior  grants  made  of  lands  to  all  persons,  corporations,  col- 
leges, towns,  villages,  and  schools.  It  reserved  to  the  crown  the 
appointment  of  the  governor,  and  lieutenant-governor,  and  secre- 
tary of  the  province,  and  all  the  officers  of  the  Court  of  Admi- 
ralty. It  provided  for  the  appointment  annually  of  twenty-eight 
counsellors,  who  were  to  be  chosen  by  the  General  Court,  and 
nominated  the  first  board.  The  governor  and  counsellors  were 
to  hold  a  council  for  the  ordering  and  directing  of  the  affairs  of 
the  province.  The  governor  was  invested  with  authority,  with 
the  advice  and  consent  of  the  council,  to  nominate  and  appoint 
"judges,  commissioners  of  oyer  and  terminer,  sheriffs,  provosts, 
marshals,  justices  of  the  peace,  and  other  officers  to  the  council 
and  courts  of  justice  belonging."  The  governor  was  also  invested 
with  the  command  of  the  militia,  and  with  power  to  appoint  any 
chief  commander  or  other  officer  or  officers ;  to  train,  instruct, 
exercise,  and  govern  the  militia,  to  lead  them  in  war,  and  to  use 
and  exercise  the  law  martial  in  time  of  actual  war,  invasion,  or 
rebellion.  He  had  also  the  power  of  calling  the  General  Court, 
and  of  adjourning,  proroguing,  and  dissolving  it.  He  had  also 
a  negative  upon  all  laws  passed  by  the  General  Court.  The  Gen- 
eral Court  was  to  assemble  annually  on  the  last  Wednesday  of 
May,  and  was  to  consist  of  the  governor  and  council  for  the  time 
being,  and  of  such  representatives  being  freeholders  as  should  be 
annually  elected  by  the  freeholders  in  each  town,  who  possessed  a 
freehold  of  forty  shillings'  annual  value,  or  other  estate  to  the 
value  of  forty  pounds.  Each  town  was  entitled  to  two  representa- 
tives ;  but  the  General  Court  was  from  time  to  time  to  decide  on 
the  number  which  each  town  should  send.  The  General  Court 
was  invested  with  full  authority  to  erect  courts,  to  levy  taxes,  and 
make  all  wholesome  laws  and  ordinances,  "  so  as  the  same  be  not 
repugnant  or  contrary  to  the  laws  of  England "  ;  and  to  settle 
annually  all  civil  officers  whose  appointment  was  not  otherwise 
provided  for.  All  laws,  however,  were  to  be  sent  to  England  for 
approbation  or  disallowance  ;  and  if  disallowed,  and  so  signified 


CH.  IV.]  MASSACHUSETTS.  48 

under  the  sign  manual  and  signet,  within  three  years,  the  same 
thenceforth  to  cease  and  become  void ;  otherwise  to  continue  in 
force  according  to  the  terms  of  their  original  enactment.  The 
General  Court  was  also  invested  with  authority  to  grant  any  lands 
in  the  colonies  of  Massachusetts,  New  Plymouth,  and  province  of 
Maine,  with  certain  exceptions.  The  governor  and  council  were 
invested  with  full  jurisdiction  as  to  the  probate  of  wills  and  grant- 
ing administrations.  The  governor  was  also  made  commander-in- 
chief  of  the  militia  with  the  usual  martial  powers  ;  but  was  not  to 
exercise  martial  law  without  the  advice  of  the  council.  In  case 
of  his  death,  removal,  or  absence,  his  authority  was  to  devolve  on 
the  lieutenant-governor,  or,  if  his  office  was  vacant,  then  on  the 
council.  With  a  view  also  to  advance  the  growth  of  the  province 
by  encouraging  new  settlements,  it  was  expressly  provided  that 
there  should  be  "  a  liberty  of  conscience  allowed  in  the  worship 
of  God  to  all  Christians  except  Papists  "  ;  and  that  all  subjects 
inhabiting  in  the  province  and  their  children  born  there,  or  on  the 
seas  going  or  returning,  should  have  all  the  liberties  and  immuni- 
ties of  free  and  natural  subjects,  as  if  they  were  born  within  the 
realm  of  England.  And  in  all  cases  an  appeal  was  allowed  from 
the  judgments  of  any  courts  of  the  province  to  the  King  in  the 
Privy  Council  in  England,  where  the  matter  in  difference  exceeded 
three  hundred  pounds  sterling.  And  finally  there  was  a  reserva- 
tion of  the  whole  admiralty  jurisdiction  to  the  crown,  and  of  a 
right  to  all  subjects  to  fish  on  the  coasts. ^  Considering  the  spirit 
of  the  times,  it  must  be  acknowledged  that,  on  the  whole,  this 
charter  contains  a  liberal  grant  of  authority  to  the  province,  and 
a  reasonable  reservation  of  the  royal  prerogative.  It  was  hailed 
with  sincere  satisfaction  by  the  colony,  after  the  dangers  which 
had  for  so  long  a  time  menaced  its  liberties  and  its  peace.^ 

§  72.  In  reviewing  the  laws  passed  by  the  Legislature  of  Mas- 
sachusetts during  its  colonial  state,  the  first  and  most  important 
consideration  is  the  early  care  with  which  the  public  rights  of 
the  inhabitants  were  declared  and  established.  No  man's  life, 
person,  honor,  or  good  name  was  to  be  affected ;  no  man  was  to 
be  deprived  of  his  wife  or  children  or  estate,  unless  by  virtue  or 

1  The  charter  will  be  found  at  large  in  the  Colony  and  Province  Laws  of  Massachu- 
setts, printed  in  1814.     Its  substance  is  well  summed  up  in  1  Holmes's  Annals,  436. 

Under  the  first  charter  the  admiralty  jurisdiction  was  exorcised  by  the  Colonial  Com- 
mon Law  Couris,  even  in  capital  cases.     1  Hutch.  451. 

2  1  Hutch.  Hist.  415,  416. 


44  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

equity  of  some  express  law  of  the  General  Court,  "  or,  in  case  of  a 
defect  of  a  law  in  any  particular  case,  by  the  Word  of  God  ;  and 
in  capital  cases,  or  in  cases  of  dismembering  or  banishment  ac- 
cording to  that  Word,  to  be  judged  of  by  the  General  Court."  ^ 
No  persons  but  church-members  were  allowed  to  become  freemen  ; 
and  all  persons  of  twenty-one  years  of  age  were  allowed  to  dis- 
pose of  their  estate  by  will  or  any  proper  conveyance  .^  All  con- 
veyances were  to  be  by  deed  acknowledged  and  recorded  in  the 
public  records.^  All  lands  and  hereditaments  were  declared  free 
from  all  fines  and  forfeitures.  Courts  of  law  were  established, 
and  local  processes  provided  for.*  The  trial  by  jury  in  civil  and 
criminal  cases  was  secured.^  Wager  of  law  was  not  allowed  but 
according  to  law,  and  according  to  the  precept  in  Exodus  (xxii.  8). 
Difficult  cases  of  law  were  finally  determinable  in  the  Court  of 
Assistants  or  in  the  General  Court,  by  appeal  or  petition.  In 
criminal  cases  where  the  law  prescribed  no  penalty,  the  judges 
had  power  to  inflict  penalties  "  According  to  the  rule  of  God's 
Word."  ^  Treason,  murder,  poisoning,  arson,  witchcraft,  sodomy, 
idolatry,  blasphemy,  man-stealing,  adultery,  false  witness,  con- 
spiracy and  rebellion,  cursing  or  smiting  of  parents  by  children, 
being  a  stubborn  or  rebellious  son,  burglary,  and  rape  (in  partic- 
ular circumstances)  were  offences  punishable  with  death."^  For 
the  severity  of  some  of  these  punishments  the  General  Court  ex- 
pressly justified  themselves  by  the  language  of  the  Scriptures. 
But  theft  was  not  punished  with  death,  because,  as  they  said, 
"  we  read  otherwise  in  the  Scriptures  "  ;  ^  and  many  other  crimes 
of  a  heinous  nature  were  suffered  to  pass  with  a  moderate  pun- 
ishment.^ Hutchinson  has  well  observed,  that  "  in  punishing 
offences  they  professed  to  be  governed  by  the  judicial  laws  of 
Moses,  but  no  further  than  those  laws  were  of  a  moral  nature."  ^^ 
Marriages  were  celebrated  exclusively  by  magistrates  during  the 

1  Hutch.  Coll.  201. 

2  Ant.  Col.  and  Prov.  Laws,  ch.  4,  p.  44 ;  ch.  104,  p.  204. 

«  Ant.  Col.  and  Prov.  Laws,  ch.  1,  p.  41 ;  ch.  28,  p.  85  ;  1  Hutch.  Hist.  455. 

*  Hutch.  Coll.  203,  205. 

6  1  Hutch.  450  ;  Hutch.  Coll.  203,  205. 

6  Hutch.  Coll.  205. 

7  Ant.  Col.  and  Prov.  Laws,  ch.  18,  p.  58,  59,  60 ;  1  Hutch.  Hist  440,  441,  442 ;  1 
Belk.  New  Hampshire,  ch.  4,  p.  66. 

8  Hutch.  Coll.  205. 

9  1  Hutch.  Hist.  442,  443,  444  ;  Ant.  Col.  and  Prov.  Laws,  ch.  17,  p.  56. 

10  1  Hutch.  Hist.  435,  439. 


CH.  IV.]  MASSACHUSETTS.  45 

first  charter;  though  afterwards  there  was  a  concurrent  power 
given  to  the  clergy.^  Divorces  a  mensa  et  thoro  seem  not  to  have 
been  in  use  during  the  period  of  the  first  charter  ;  but  for  the 
same  causes  for  which  such  a  divorce  might  be  granted  by  the 
spiritual  courts,  a  divorce  a  vinculo  was  granted.  Female  adultery 
was  a  sufficient  cause  ;  but  male  adultery  not.^  In  tenderness  to 
the  marriage  state,  a  man  who  struck  his  wife,  or  a  woman  her 
husband,  was  liable  to  a  fine.^ 

§  73.  In  the  beginning  the  county  courts  had  jurisdiction  of 
the  testamentary  matters,  and  real  estate  was  at  first  treated  as 
mere  bona  in  the  civil  law.  When  a  positive  rule  was  made,  all 
the  estate  was  (apparently  with  some  reference  to  the  Mosaic 
law)  made  subject  to  distribution  ;  the  widow  had  such  part  of 
the  estate  as  the  court  held  just  and  equal ;  and  the  rest  was  di- 
vided among  the  children  or  other  heirs,  the  eldest  son  having  a 
double  portion,*  and  the  daughters,  where  there  were  no  sons, 
inheriting  as  coparceners,  unless  the  court  otherwise  should  de- 
termine.^ If  the  party  died  insolvent,  his  estate  was  distributed 
among  all  his  creditors,  there  not  being  any  preference  of  any 
debts  by  judgment  or  specialty.^ 

The  law  of  inheritance  was  thus,  as  we  see,  altered  from  that 
of  England  from  the  beginning ;  and  yet,  strangely  enough,  the 
General  Court,  in  their  answer  in  1646,  considered  their  canon 
of  descent  as  parallel  to  the  English  law,  and  expounded  it  by 
the  same  terms,  "  the  eldest  son  is  preferred  before  the  younger 
in  the  ancestor's  inheritance,"^  when  in  reality  he  had  only  a 
double  portion,  and  the  estate  was  partible  among  all  the  chil- 
dren. Their  land  being  by  the  charter  held,  as  of  the  manor  of 
East  Greenwich,  in  free  and  common  socage,  they  attributed  to 
it  the  gavelkind  quality  of  not  being  forfeited  for  felony  or  trea- 
son ;  and  the  convict  might,  therefore,  even  after  sentence,  dispose 
of  it  by  will.^  Estates  tail  were  recognized,  and  in  such  cases 
the  heir  took  per  formam  doni,  according  to  the  common  law,  and 
not  all  the  children  as  one  heir.^ 

1  1  Hutch.  Hist.  444.  »  1  Hutch.  Hist.  445. 

8  I  Hutch.  Hist.  445.  *  1  Hutch.  Hist.  446. 

s  Ant.  Col.  and  Prov.  Laws,  ch.  104,  p.  205. 

6  1  Hutch.  Hist.  446. 

7  Hutch.  Coll.  207;  1  Hutch.  Hist.  447;  Ant.  Col.  and  Prov.  Laws,  ch.  104,  p. 
205. 

8  1  Hutch.  Hist.  447.  »  1  Hutch.  Hist.  447. 


46  HISTORY  OF  THE  COLONIES.  [BOOK  L 

§  74.  In  respect  to  ecclesiastical  concerns,  they  made  ample 
provision  for  their  own  church,  (meaning  the  Congregational 
Church,)  exclusive  of  all  others.  In  their  parallel  in  1646,  they 
quote  the  provision  of  Magna  Charta,  that  "  the  church  shall 
enjoy  all  her  liberties,"  and,  dropping  all  suggestion  of  the  real 
differences  of  their  own  church  establishment  from  that  of  Eng- 
land, they  quote  their  own  provision,  that  "  all  persons  orthodox 
in  judgment,  and  not  scandalous  in  life,  may  gather  into  a  church 
state,  according  to  the  rules  of  the  gospel,"  as  of  similar  import.^ 
They  gave  to  their  own  churches,  when  organized,  full  power 
and  authority  to  inflict  ecclesiastical  censures,  and  even  to  expel 
members.  But  they  reserved  to  the  civil  authority  the  further 
power  to  punish  offences,  and  "  the  liberty  to  see  the  peace,  or- 
dinances, and  rules  of  Christ  observed."  ^  Every  church  had 
liberty  to  elect  its  own  officers,  and  "no  injunction  was  to  be 
put  upon  any  church,  church  officer,  or  member  in  point  of  doc- 
trine, worship,  or  discipline,  whether  for  substance  or  circum- 
stance, besides  the  institution  of  the  Lord."^  But  the  General 
Court,  with  the  assistance  of  the  clergy,  were  in  the  habit  of 
judging  of  all  such  matters  with  supreme  authority,  and  of  con- 
demning errors  with  no  sparing  hand.  They  had  not  the  slight- 
est scruple  of  punishing  heresies  with  fines  and  banishment,  and 
even,  in  obstinate  cases,  with  death.*  Ministers  were  maintained 
and  public  worship  provided  for  by  taxes  assessed  upon  the  in- 
habitants of  each  parochial  district;  and  an  attendance  upon 
public  worship  was  required  of  all  persons,  under  penalties,  as  a 
solemn  duty.^  So  effectual  were  the  colonial  laws  in  respect  to 
conformity,  and  so  powerful  the  influence  of  the  magistrates  and 
the  clergy,  that  Hutchinson  informs  us  that  there  was  not  "  any 
Episcopal  Church  in  any  part  of  the  colony  until  the  charter  was 
vacated."  ^ 

§  75.   But  the  most  striking,  as  well  as  the  most  important  part 

1  Hutch.  Collect.  201 ;  Ant.  Colon,  and  Prov.  Laws,  ch.  39,  p.  100 ;  I  Haz.  Coll. 
488. 

2  Ant.  Col.  and  Prov.  Laws,  ch.  39,  p.  100, 101. 

3  1  Hutch.  Hist.  420,  421,  422,  423,  424,  434  ;  1  Belk.  New  Hamp.  ch.  4,  p.  70,  71. 

*  Robertson's  America,  B.  10  ;  1  Belk.  New  Hamp.  ch.  4,  p.  70  to  77 ;  Ant.  Col.  and 
Prov.  Laws,  ch.  57,  p.  120,  &c. ;  Hutch.  Coll.  215,  216;  1  Hutch.  Hist.  431 ;  2  Hutch. 
Hist.  42;  1  Haz.  Coll.  538;  1  Chalmers's  Annals,  163,  164,  165,  167,  169,  189,  190, 
191,  194. 

5  1  Hutch.  Hist.  427  ;  Ant.  Col.  and  Prov.  Laws,  ch.  39,  p.  103,  104. 

6  1  Hutch.  Hist.  431. 


CH.  IV.]  MASSACHUSETTS.  47 

of  their  legislation,  is  in  respect  to  education.  As  early  as  1647, 
the  General  Court,  "  to  the  end,"  as  the  preamble  of  the  act  de- 
clares,!  ''  that  learning  may  not  be  buried  in  the  graves  of  our 
forefathers  in  church  and  commonwealth,"  provided,  under  a 
penalty,  that  every  township  of  fifty  householders  "  shall  appoint 
a  public  school  for  the  instruction  of  children  in  writing  and  read- 
ing," and  that  every  town  of  one  hundred  householders  "  shall  set 
up  a  grammar  school,  the  master  thereof  being  able  to  instruct 
youth  so  far  as  may  be  fitted  for  the  university."  This  law  has, 
in  substance,  continued  down  to  the  present  times ;  and  it  has 
contributed  more  than  any  other  circumstance  to  give  that  peculiar 
character  to  the  inhabitants  and  institutions  of  Massachusetts  for 
which  she,  in  common  with  the  other  New  England  States,  in- 
dulges an  honest  and  not  unreasonable  pride. 

§  76.  After  the  grant  of  the  provincial  charter,  in  1691,  the 
legislation  of  the  colony  took  a  wider  scope,  and  became  more 
liberal  as  well  as  more  exact.  At  the  very  first  session  an  act 
passed,  declaring  the  general  rights  and  liberties  of  the  people, 
and  embracing  the  principal  provisions  of  Magna  Charta  on  this 
subject.  Among  other  things,  it  was  declared  that  no  tax  could 
be  levied  but  by  the  General  Court ;  that  the  trial  by  jury  should 
be  secured  to  all  the  inhabitants  ;  and  that  all  lands  shall  be  free 
from  escheats  and  forfeitures,  except  in  cases  of  high  treason.^ 
A  habeas  corpus  act  was  also  passed  at  the  same  session ;  but  it 
seems  to  have  been  disallowed  by  the  crown.^  Chalmers  asserts 
that  there  is  no  circumstance  in  the  history  of  colonial  jurispru- 
dence better  established  than  the  fact  that  the  habeas  corpus  act 
was  not  extended  to  the  plantations  until  the  reign  of  Queen 
Anne.* 

§  77.  It  does  not  seem  necessary  to  go  into  any  minute  exami- 
nation of  the  subsequent  provincial  legislation.  In  its  general 
character  it  did  not  materially  vary  from  that  antecedently 
adopted,  except  so  far  as  the  charter  required,  or  a  progressive 
spirit  of  improvement  invited  a  change.  Lands  were  made  lia- 
ble to  the  payment  of  debts  ;  the  right  of  choosing  their  ministers 
was,  after  some  struggles,  secured  in  effect  to  the  concurrent  vote 
of  the  church  and  congregation  in  each  parish  ;  and  the  spirit  of 

1  Ant.  Col.  and  Prov.  Laws,  ch.  88,  p.  186. 

2  2  Hutch.  Hist.  64  ;  Ant.  Col.  and  Prov.  Laws,  ch.  2,  p.  214. 

s  2  Hutch.  Hist.  64.  *  1  Chalm.  Annals,  56,  74. 


48  mSTOBY  OF  THE  COLONIES.  [BOOK  I. 

religious  intolerance  was  in  some  measure  checked,  if  not  entirely 
subdued.  Among  the  earliest  acts  of  the  provincial  Legislature, 
which  were  approved,  were  an  act  for  the  prevention  of  frauds 
and  perjuries,  conformable  to  that  of  Charles  the  Second  ;  an  act 
for  the  observance  of  the  Lord's  Day ;  an  act  for  solemnizing 
marriages  by  a  minister  or  a  justice  of  peace ;  an  act  for  the 
support  of  ministers  and  schoolmasters  ;  an  act  for  regulating 
towns  and  counties ;  and  an  act  for  tlie  settlement  and  distribii- 
tion  of  the  estates  of  persons  dying  intestate.^  These  and  many 
other  acts  of  general  utility  have  continued  substantially  in  force 
down  to  our  day.  Under  the  act  for  the  distribution  of  estates, 
the  half-blood  were  permitted  to  inherit  equally  with  the  whole 
blood .2  Entails  were  preserved  and  passed  according  to  the 
course  of  descents  of  the  common  law  ;  but  the  general  policy  of 
the  State  silently  reduced  the  actual  creation  of  such  estates  to 
comparatively  narrow  limits. 

1  2  Hutch.  Hist.  65,  66.  2  ibid.  66. 


CH.  v.]  NEW  HAMPSHIRE  49 


CHAPTER    Y. 

NEW   HAMPSHIRE. 

§  78.  Having  gone  into  a  full  consideration  of  the  origin  and 
political  organization  of  the  primitive  colonies  in  the  South  and 
North,  it  remains  only  to  take  a  rapid  view  of  those  which  were 
subsequently  established  in  both  regions.  An  historical  order  will 
probably  be  found  as  convenient  for  this  purpose  as  any  which 
could  be  devised. 

§  79.  In  November,  1629,  Captain  John  Mason  obtained  a  grant 
from  the.  Council  of  Plymouth  of  all  that  part  of  the  mainland 
in  New  England  "  lying  upon  the  sea-coast,  beginning  from  the 
middle  part  of  Merrimack  River,  and  from  thence  to  proceed  north- 
wards along  the  sea-coast  to  Piscataqua  River,  and  so  forwards  up 
within  the  said  river  and  to  the  furthest  head  thereof ;  and  from 
thence  northwestwards  until  threescore  miles  be  finished  from  the 
first  entrance  of  Piscataqua  River;  and  also  from  Merrimack 
through  the  said  river  and  to  the  furthest  head  thereof,  and  so 
forwards  up  into  the  lands  westwards,  until  threescore  miles  be  fin- 
ished ;  and  from  thence  to  cross  overland  to  the  end  of  the  three- 
score miles  accounted  from  Piscataqua  River,  together  with  all  isl- 
ands and  islets  within  five  leagues'  distance  of  the  premises."  ^ 
This  territory  was  afterwards  called  New  Hampshire.  The  land 
so  granted  was  expressly  subjected  to  the  conditions  and  limita- 
tions in  the  original  patent ;  and  there  was  a  covenant  on  the  part 
of  Mason,  that  he  would  establish  such  government  therein,  and 
continue  the  same,  "  as  shall  be  agreeable,  as  near  as  may  be,  to 
the  laws  and  customs  of  the  realm  of  England  "  ;  and  that  if 
charged  with  neglect,  he  would  reform  the  same  according  to  the 
discretion  of  the  president  and  council ;  or  in  default  thereof,  that 
the  aggrieved  inhabitants  or  planters,  tenants  of  the  lands,  might 
appeal  to  the  chief  court  of  justice  of  the  president  and  council. 
A  further  grant  was  made  to  Mason  by  the  Council  of  Plymouth 
about  the  time  of  the  surrender  of  their  charter,  (22  April,  1635,) 
"  beginning  from  the  middle  part  of  Naumkeag  River  [Salem]  and 

1  1  Haz.  Coll.  289;  1  Holmes's  Annals,  199;  1  Belk.  N.  Hamp.  ch.  1,  p.  13. 
VOL.  I.  4 


50  HISTORY   OF  THE  COLONIES.  [BOOK  L 

from  thence  to  proceed  eastwards  along  the  sea-coast  to  Cape  Ann 
and  round  about  the  same  to  Piscataqua  harbor '' ;  and  then  cover- 
ing much  of  the  land  in  the  prior  grant,  and  giving  to  the  whole  the 
name  of  New  Hampshire.^  This  grant  included  a  power  of  judi- 
cature in  all  cases,  civil  and  criminal,  "  to  be  exercised  and  exe- 
cuted according  to  the  laws  of  England  as  near  as  may  be," 
reserving  an  appeal  to  the  council.  No  patent  of  confirmation  of 
this  grant  appears  to  have  been  made  by  the  crown  after  the  sur- 
render of  the  Plymouth  patent.^ 

§  80.  Various  detached  settlements  were  made  within  this  ter- 
ritory ;  and  so  ill  defined  were  the  boundaries,  that  a  controversy 
soon  arose  between  Massachusetts  and  Mason  in  respect  to  the 
right  of  sovereignty  over  it.^  In  the  exposition  of  its  own  charter 
Massachusetts  contended  that  its  limits  included  the  whole  terri- 
tory of  New  Hampshire ;  and,  being  at  that  time  comparatively 
strong  and  active,  she  succeeded  in  establishing  her  jurisdiction  over 
it,  and  maintained  it  with  unabated  vigilance  for  forty  years.*  The 
controversy  was  finally  brought  before  the  king  in  council ;  and 
in  1679  it  was  solemnly  adjudged  against  the  claim  of  Massachu- 
setts. And  it  being  admitted  that  Mason,  under  his  grant,  had  no 
right  to  exercise  any  powers  of  government,  a  commission  was,  in 
the  same  year,  issued  by  the  crown  for  the  government  of  New 
Hampshire.^  By  the  form  of  government  described  in  this  com- 
mission the  whole  executive  power  was  vested  in  a  president  and 
council  appointed  by  the  crown^towhom  also  was  confided  the 
judiciary  power  with  an  appeal  to  England.  In  the  administra- 
tion of  justice  it  was  directed,  that  "  the  form  of  proceedings  in 
such  cases,  and  the  judgment  thereon  to  be  given,  be  as  consonant 
and  agreeable  to  the  laws  and  statutes  of  this  our  realm  of  Eng- 
land, as  the  present  state  and  condition  of  our  subjects  inhabiting 
within  the  limits  aforesaid,  and  the  circumstances  of  the  place  will 
admit."  ^     The  legislative  power  was  intrusted  to  the  president, 

1  1  Haz.  Coll.  383,  384,  385;  1  Chalm.  Annals,  472, 473,  477  ;  1  Belk.  N.  Hamp.  ch. 
1,  p.  27. 

2  1  Hutch.  Hist.  313,  314;  Marsh.  Colon,  ch.  3,  p.  97. 
8  1  Hutch.  Hist.  101,  108,  109,  311,  312  to  318. 

*  1  Chalm.  Annals,  477,  484,  485,  504,  505;  Marsh.  Colon,  ch.  4,  p.  109,  ch.  6,  p. 
167,  168 ;  Hutch.  Coll.  422;  1  Belk.  N.  Hamp.  ch.  2,  p.  49,  50. 

6  1  Chalm.  Annals,  489,  490;  1  Hutch.  Hist.  319;  1  Holmes's  Annals,  395;  Marsh. 
Colon,  ch.  6,  p.  168  ;  Rob.  America,  B.  10;  1  Belk.  N.  Hamp.  ch.  6,  p.  137,  138;  1 
Doug.  Summ.  28;  N.  Hamp.  Prov.  Laws,  (edit.  1771,)  p.  1,  &c. 

6  N.  Hamp.  Prov.  Laws,  (edit.  1771,)  p.  1,  3. 


CH.  v.]  NEW  HAMPSHIRE.  61 

council,  and  burgesses,  or  representatives  chosen  by  the  towns ; 
and  they  were  authorized  to  levy  taxes  and  to  make  laws  for  the 
interest  of  the  province  ;  which  laws,  being  approved  by  the  presi- 
dent and  council,  were  to  stand  and  be  in  force  until  tlie  pleasure 
of  the  king  should  be  known,  whether  the  same  laws  and  ordi- 
nances should  receive  any  change  or  confirmation,  or  be  totally  dis- 
allowed and  discharged.  And  the  president  and  council  were 
required  to  transmit  and  send  over  the  same  by  the  first  ship  that 
should  depart  thence  for  England  after  their  making.  Liberty  of 
conscience  was  allowed  to  all  Protestants,  those  of  the  Church  of 
England  to  be  particularly  encouraged.  And  a  pledge  was  given 
in  the  commission  to  continue  the  privilege  of  an  assembly  in  the 
same  manner  and  form,  unless  by  inconvenience  arising  therefrom 
the  crown  should  see  cause  to  alter  the  same.^  A  body  of  laws  was 
enacted  in  the  first  year  of  their  legislation,  which,  upon  being 
sent  to  England,  was  disallowed  by  the  crown. ^  New  Hampshire 
continued,  down  to  the  period  of  the  Revolution,  to  be  governed 
by  commission  as  a  royal  province  ;  and  enjoyed  the  privilege  of 
enacting  her  own  laws  through  the  instrumentality  of  a  general 
assembly,  in  the  manner  provided  by  the  first  commission.^  Some 
alterations  were  made  in  the  successive  commissions,  but  none  of 
them  made  any  substantive  change  in  the  organization  of  the 
province.  The  judicial  power  of  the  governor  and  council  was 
subsequently,  by  law,  confined  to  the  exercise  of  appellate  juris- 
diction from  the  inferior  courts.;  and  in  the  later  commissions  a 
clause  was  inserted,  that  the  colonial  statutes  should  "  not  be 
repugnant,  but  as  near  as  may  be  agreeable,  to  the  laws  and 
statutes  of  the  realm  of  England."  * 

§  81.  The  laws  of  New  Hampshire,  during  its  provincial  state, 
partook  very  much  of  the  character  of  those  of  the  neighboring 
province  of  Massachusetts.^  Those  regulating  the  descent  and 
distribution  of  estates,  the  registration  of  conveyances,  the  taking 
of  depositions  to  be  used  in  the  civil  courts,  for  the  maintenance 
of  the  ministry,  for  making  lands  and  tenements  liable  for  the 
payment  of  debts,  for  the  settlement  and  support  of  public  gram- 

1  1  Chalm.  Annals,  489,  490 ;  1  Holmes's  Annals,  395 ;  1  Belk.  N.  Hamp.  ch.  6,  p. 
138,  139;  2  Belk.  N.  Hamp.  Preface;  N.  Hamp.  Prov.  Laws,  (edit.  1771,)  p.  5. 

2  Ibid. 

8  1  Chalm.  Annals,  491,  492,  493,  508. 

*  N.  Hamp.  Prov.  Laws,  (edit.  1771,)  p.  61,  and  Id. 

s  N.  Hamp.  Prov.  Laws,  (edit.  1771,)  19,  22,  55,  90,  104, 105, 137, 143, 157, 163, 166. 


62  HISTORY  OF  THE  COLONIES.  [BOOK  L 

mar  schools,  for  the  suppression  of  frauds  and  perjuries,  and  for 
the  qualification  of  voters,  involve  no  important  differences,  and 
were  evidently  framed  upon  a  common  model.  New  Hampshire 
seems  also  to  have  had  more  facility  than  some  other  colonies,  in 
introducing  into  her  domestic  code  some  of  the  most  beneficial 
clauses  of  the  acts  of  Parliament  of  a  general  nature,  and  applica- 
ble to  its  local  jurisprudence.^  We  also  find  upon  its  statute  book, 
without  comment  or  objection,  the  celebrated  Plantation  Act  of  7 
&  8  William  3,  ch.  22,  as  well  as  the  acts  respecting  inland  bills 
of  exchange,  (9  &  10  William  3,  ch.  17,)  and  promissory  notes, 
(4  Ann,  ch..9,)  and  others  of  a  less  prominent  character. 

1  N.  Hamp.  Prov.  Laws,  (edit.  1771,)  p.  209;  Gov.  Wentworth's  Commission  in 
1766. 


CH.  VL]  MAINE.  68 


CHAPTER    YI. 

MAINE. 

§  82.  In  August,  1622,  the  Council  of  Plymouth  (which  seems 
to  have  been  extremely  profuse  and  inconsiderate  in  its  grants  ^) 
granted  to  Sir  Ferdinando  Gorges  and  Captain  John  Mason  all 
the  land  lying  between  the  rivers  Merrimack  and  Sagadahock,  ex- 
tending back  to  the  great  lakes  and  rivers  of  Canada ;  which  was 
called  Laconia.2  In  April,  1639,  Sir  Ferdinando  obtained  from 
the  crown  a  confirmatory  grant  of  all  the  land  from  Piscataqua 
to  Sagadahock  and  the  Kennebec  River,  and  from  the  coast  into 
the  northern  interior  one  hundred  and  twenty  miles ;  and  it  was 
styled  "  The  Province  of  Maine."  ^  Of  this  province  he  was 
made  Lord  Palatine,  with  all  the  powers,  jurisdiction,  and  royal- 
ties belonging  to  the  Bishop  of  the  County  Palatine  of  Durham ; 
and  the  lands  were  to  be  holden  as  of  the  manor  of  East  Green- 
wich. The  charter  contains  a  reservation  of  faith  and  allegiance 
to  the  crown,  as  having  the  supreme  dominion  ;  and  the  will  and 
pleasure  of  the  crown  is  signified,  that  the  religion  of  the  Church 
of  England  be  professed,  and  its  ecclesiastical  government  estab- 
lished in  the  province.  It  also  authorizes  the  Palatine,  with  the 
assent  of  the  greater  part  of  the  freeholders  of  the  province,  to 
make  laws  not  repugnant  or  contrary,  but  as  near  as  conveniently 
may  be  to  the  laws  of  England,  for  the  public  good  of  the  prov- 
ince ;  and  to  erect  courts  of  judicature  for  the  determination  of 
all  civil  and  criminal  causes,  with  an  appeal  to  the  Palatine. 
But  all  the  powers  of  government  so  granted  were  to  be  subordi- 
nate to  the  "  power  and  regement "  of  the  lords  commissioners 
for  foreign  plantations  for  the  time  being.  The  Palatine  also 
had  authority  to  make  ordinances  for  the  government  of  the 
province,  under  certain  restrictions,  and  a  grant  of  full  admi- 
ralty powers,  subject  to  those  of  the  Lord  High  Admiral  of  Eng- 
land.    And  the  inhabitants,  being  subjects  of  the  crown,  were 

1  1  Hutch.  Hist.  6,  104;  Rob.  America,  B.  10 ;  1  Doug.  Summ.  366,  380,  386. 
'■^  1  Hutch.  Hist.  316 ;  1  Holmes's  Annals,  180 ;  1  Belk.  N.  Hamp.  ch.  1,  p.  14. 
8  Holmes's  Annals,  254;  1  Chalm.  Annals,  472,  473, 474 ;  1  Doug.  Summ.  386,  &c. 


M  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

to  enjoy  all  the  rights  and  privileges  of  natural-born  subjects  in 
England. 

§  83.  Under  these  ample  provisions  Gorges  soon  established  a 
civil  government  in  the  province,  and  made  ordinances.  The 
government,  such  as  it  was,  was  solely  confided  to  the  executive, 
without  any  powers  of  legislation.  The  province  languished  in 
imbecility  under  his  care,  and  began  to  acquire  vigor  only  when 
he  ceased  to  act  as  proprietary  and  lawgiver.^  Massachusetts 
soon  afterwards  set  up  an  exclusive  right  and  jurisdiction  over 
the  territory,  as  within  its  chartered  limits,  and  was  able  to  en- 
force obedience  and  submission  to  its  power. ^  It  continued  under 
the  jurisdiction  of  Massachusetts  until  1665,  when  the  commis- 
sioners of  the  crown  separated  it  for  a  short  period  ;  but  the 
authority  of  M-assachusetts  was  soon  afterwards  re-established.* 
The  controversy  between  Massachusetts  and  the  Palatine,  as  to 
jurisdiction  over  the  province,  was  brought  before  the  Privy  Coun- 
cil at  the  same  time  with  that  of  Mason  respecting  New  Hamp- 
shire, and  the  claim  of  Massachusetts  was  adjudged  void.^  Before 
a  final  adjudication  was  had,  Massachusetts  had  the  prudence  and 
sagacity,  in  1677,  to  purchase  the  title  of  Gorges  for  a  trifling 
sum ;  and  thus,  to  the  great  disappointment  of  the  crown,  (then 
in  treaty  for  the  same  object,)  succeeded  to  it,  and  hold  and  gov- 
erned it  as  a  provincial  dependency,  until  the  fall  of  its  own  char- 
ter ;  and  it  afterwards,  as  we  have  seen,  was  incorporated  with 
Massachusetts  in  the  provincial  charter  of  1691.^ 

1  1  Haz.  Coll.  442  to  445. 

2  1  Chalm.  Annals,  474,  479  ;  1  Holmes's  Annals,  254,  258,  296. 

3  1   Chalm.  Annals,  480,  481,  483;  1  Hutch.  History,  176,  177,  256;  1  Holmes's 
Annals,  296  ;  2  Winthrop's  Journ.  38,  42. 

*  1  Chalm.  Annals,  483,  484  ;  1  Holmes's  Annals,  343,  348;  Hutch.  Coll.  422. 

5  1  Chalm.  Annals,  485,  504,  505  ;  1  Holmes's  Annals,  388. 

^  1  Chalm.  Annals,  486,  487  ;  1  Holmes's  Annals,  388 ;  1  Hutch.  Hist.  326. 


CH.  VIl]  CONNECTICUT.  55 

CHAPTeJr   VII. 

CONNECTICUT. 

§  84.  Connecticut  was  originally  settled  under  the  protection 
of  Massachusetts ;  but  the  inhabitants  in  a  few  years  afterwards 
(1638)  felt  at  liberty  (after  the  example  of  Massachusetts)  to 
frame  a  constitution  of  government  and  laws  for  themselves.^ 
In  1630,  the  Earl  of  Warwick  obtained  from  the  Council  of 
Plymouth  a  patent  of  the  land  upon  a  straight  line  near  the  sea- 
shore towards  the  southwest,  west  and  by  south,  or  west  from 
Narraganset  River  forty  leagues,  as  the  coast  lies,  towards  Vir- 
ginia, and  all  within  that  breadth  to  the  South  Sea.  In  March, 
1631,  the  Earl  of  Warwick  conveyed  the  same  to  Lord  Say  and 
Seale  and  others.  In  April,  1635,^  the  same  council  granted  the 
same  territory  to  the  Marquis  of  Hamilton.  Possession  under 
the  title  of  Lord  Say  and  Seale  and  others  was  taken  at  the 
mouth  of  the  Connecticut  in  1635.^  The  settlers  there  were  not, 
however,  disturbed ;  and  finally,  in  1644,  they  extinguished  the 
title  of  the  proprietaries,  or  lords,  and  continued  to  act  under  the 
constitution  of  government  which  they  had  framed  in  1638.  By 
that  constitution,  which  was  framed  by  the  inhabitants  of  the 
three  towns  of  Windsor,  Hartford,  and  Weathersfield,  it  was  pro- 
vided that  there  should  be  two  general  assemblies  annually  ;  that 
there  should  be  annually  e*lected,  by  the  freemen,  at  the  court  in 
April,  a  governor  and  six  assistants,  who  should  "  have  power  to 
administer  justice  according  to  the  law  here  established,  and  for . 
want  thereof  according  to  the  rule  of  the  Word  of  God."  And 
that  as  many  other  officers  should  be  chosen  as  might  be  found 

1  Hutch.  Hist.  98,  99  ;  2  Hutch.  Hist.  202 ;  1  Haz.  Coll.  321  ;  1  Holmes's  Annals, 
220,  228,  231,232,  251,  269;  1  Chalm.  Annals,  286,  287,  289;  2  Doug.  Summ."158, 
&c. ;  1  Hutch   Hist.  100. 

The  substance  of  this  frame  of  government  is  given  in  1  Holmes's  Annals,  251 ;  and 
a  full  copy  in  1  Haz.  Coll.  437,  441. 

2  2  Hutch.  Hist.  203;  1  Haz.  Coll.  318;  1  Holmes's  Ann.  208 ;  1  Chalm.  Ann. 
299. 

8  1  Chalm.  Annals,  288,  289,  290,  300;  2  Hutch.  Hist.  203 ;  1  Haz.  Coll.  395,  396; 
1  Holmes's  Annals,  229  ;  1  Hutch.  Hist.  47  ;  1  Winthrop's  Jour.  170,  397 ;  Hutch. 
Coll.  412,  413. 


56  HISTORY  OF  THE  COLONIES.  [BOOK.  I. 

requisite.^  To  the  General  Court  each  of  the  above-named  towns 
was  entitled  to  send  four  deputies  ;  and  other  towns,  which  should 
be  afterwards  formed,  were  to  send  so  many  deputies  as  the  Gen- 
eral Court  should  judge  meet,  sfccording  to  the  apportionment  of 
the  freemen  in  the  town.  All  persons,  who  were  inhabitants  and 
freemen,  and  who  took  the  oath  of  fidelity,  were  entitled  to  vote 
in  the  elections.  Church-membership  was  not,  as  in  Massachu- 
setts, an  indispensable  qualification.  The  supreme  power,  legis- 
lative, executive,  and  judicial,  was  vested  in  the  General  Court.^ 

§  85.  The  colony  of  New  Haven  had  a  separate  origin,  and  was 
settled  by  emigrants  immediately  from  England,  without  any  title 
derived  from  the  patentees.  They  began  their  settlement  in  1638, 
purchasing  their  lands  of  the  natives,  and  entered  into  a  solemn 
compact  of  government.^  By  it  no  person  was  admitted  to  any 
office,  or  to  have  any  voice  at  any  election,  unless  he  was  a  mem- 
ber of  one  of  the  churches  allowed  in  the  dominion.  There  was 
an  annual  election  of  the  governor,  the  deputy,  magistrates,  and 
other  officers,  by  the  freemen.  The  General  Court  consisted  of 
the  governor,  deputy,  magistrates,  and  two  deputies  from  each 
plantation  ;  *  and  was  declared  to  be  "  the  supreme  power,  under 
God,  of  this  independent  dominion,"  and  had  authority  "to 
declare,  publish,  and  establish  the  laws  of  God,  the  Supreme  Legis- 
lator, and  to  make  and  repeal  orders  for  smaller  matters,  not  par- 
ticularly determined  in  Scripture,  according  to  the  general  rules 
of  righteousness ;  to  order  all  affairs  of  war  and  peace,  and  all 
matters  relative  to  the  defending  or  fortifying  the  country ;  to 
receive  and  determine  all  appeals,  civil  or  criminal,  from  any 
inferior  courts,  in  which  they  are  to  proceed  according  to  Script- 
ure light,  and  laws,  and  orders  agreeing  therewith."  ^  Other 
•courts  were  provided  for ;  and  Hutchinson  observes  that  their 
laws  and  proceedings  varied  in  very  few  circumstances  from  Mas- 
sachusetts, except  that  they  had  no  jury,  either  in  civil  or  criminal 
cases.     All  matters  of  facts  were  determined  by  the  court.^ 

§  86.   Soon  after  the  restoration  of  Charles  the  Second  to  the 

1  1  Haz.  Coll.  437  ;  1  Holmes's  Ann.  251. 

2  Ibid. 

8  1  Hutch.  Hist.  82,  83 ;  1  Holmes's  Ann.  244,  245 ;  1  Chalm.  Ann.  290 ;  Robert- 
son's America,  B.  10  ;  3  American  Museum,  523. 
*  3  American  Museum,  523. 
s  1  Hutch.  Hist.  83,  note. 
6  1  Hutch.  Hist.  84,  note ;  1  Chalm.  Annals,  290. 


CH.  VII.]  CONNECTICUT.  57 

throne,  the  colony  of  Connecticut,  aware  of  the  doubtful  nature  of 
its  title  to  the  exercise  of  sovereignty,  solicited,  and  in  April,  1662, 
obtained  from  that  monarch  a  charter  of  government  and  terri- 
tory.i  The  charter  included  within  its  limits  the  whole  colony  of 
New  Haven  ;  and  as  this  was  done  without  the  consent  of  the  lat- 
ter, resistance  was  made  to  the  incorporation  until  1665,  when 
both  were  indissolubly  united,  and  have  ever  since  remained  under 
one  general  government.^ 

§  87.  The  charter  of  Connecticut,  which  has  been  objected  to 
by  Chalmers  as  establishing  "  a  mere  democracy,  or  rule  of  the 
people,"  contained,  indeed,  a  very  ample  grant  of  privileges.  It 
incorporated  the  inhabitants  by  the  name  of  the  Governor  and 
Company  of  the  Colony  of  Connecticut  in  New  England  in 
America.  It  ordained  that  two  general  assemblies  shall  be  annu- 
ally held  ;  and  that  the  assembly  shall  consist  of  a  governor, 
deputy-governor,  twelve  assistants,  and  two  deputies,  from  every 
town  or  city,  to  be  chosen  by  the  freemen,  (the  charter  nomi- 
nating the  first  governor  and  assistants).  The  general  assembly 
had  authority  to  appoint  judicatories,  make  freemen,  elect  officers, 
establish  laws  and  ordinances  "  not  contrary  to  the  laws  of  this 
realm  of  England,"  to  punish  offences  "  according  to  the  course  of 
other  corporations  within  this  our  kingdom  of  England,"  to  assem- 
ble the  inhabitants  in  martial  array  for  the  common  defence,  and 
to  exercise  martial  law  in  cases  of  necessity.  The  lands  were  to 
be  holden  as  of  the  manor  of  East  Greenwich,  in  free  and  common 
socage.  The  inhabitants  and  their  children  born  there  were  to 
enjoy  and  possess  all  the  liberties  and  immunities  of  free,  natural- 
born  subjects,  in  the  same  manner  as  if  born  within  the  realm. 
The  right  of  general  fishery  on  the  coasts  was  reserved  to  all  sub- 
jects ;  and  finally  the  territory  bounded  on  the  east  by  the  Narra- 
ganset  River,  where  it  falls  into  the  sea,  and  on  the  north  by  Mas- 
sachusetts, and  on  the  south  by  the  sea,  and  in  longitude,  as  the 
line  of  the  Massachusetts  colony  running  from  east  to  west,  that 
from  Narraganset  Bay  to  the  South  Sea,  was  granted  and  con- 
firmed to  the  colony.3  The  charter  is  silent  in  regard  to  religious 
rights  and  privileges. 

1  1  Haz.  Coll.  586  ;  1  Chalra.  Ann.  292,  293 ;  1  Holmes's  Ann.  320 ;  2  Dong.  Sumnu 
164. 

2  1  Holmes's  Ann.  338  ;  1  Chalm.  Annals,  296  ;  Marsh.  Colon.  134  ;  1  Chalm.  Ann. 
294  ;  2  Doug.  Summ.  164,  167. 

8  2  Haz.  Coll.  597  to  605 ;  1  Holmes's  Ann.  320 ;  1  Chalm.  Annals,  293,  294 ;  Marsh. 
Colon,  ch.  5,  p.  134. 


58  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

§  88.  Ill  1685,  a  quo  warranto  was  issued  by  King  James  against 
the  colony  for  the  repeal  of  the  charter.  No  judgment  appears  to 
have  been  rendered  upon  it ;  but  the  colony  offered  its  submission, 
to  the  will  of  the  crown ;  and  Sir  Edward  Andros,  in  1687,  went 
to  Hartford,  and  in  the  name  of  the  crown  declared  the  govern- 
ment dissolved.^  They  did  not,  however,  surrender  the  charter ; 
but  secreted  it  in  an  oak,  which  is  still  venerated ;  and  immedi- 
ately after  the  revolution  of  1688,  they  resumed  the  exercise  of  all 
its  powers.  Tlie  successors  of  the  Stuarts  silently  suffered  them 
to  retain  it  until  the  American  Revolution,  without  any  struggle 
or  resistance.^  The  charter  continued  to  be  maintained  as  a  fun- 
damental law  of  the  State,  until  the  year  1818,  when  a  new  con- 
stitution of  government  was  framed  and  adopted  by  the  people. 

§  89.  The  laws  of  Connecticut  were,  in  many  respects,  similar 
to  those  of  Massachusetts.^  At  an  early  period  after  the  charter 
they  passed  an  act  which  may  be  deemed  a  bill  of  rights.  By  it,  it 
was  declared  that  "  no  man's  life  shall  be  taken  away  ;  no  man's 
honor  or  good,  name  shall  be  stained  ;  nc  man's  person  shall  be 
arrested,  restrained,  banished,  dismembered,  nor  any  ways  pun- 
ished ;  no  man  shall  be  deprived  of  his  wife  or  children  ;  no  man's 
goods  or  estate  shall  be  taken  away  from  him,  nor  any  way  en- 
dangered[  under  color  of  law,  or  countenance  of  authority,  unless 
it  be  by  virtue  or  equity  of  some  express  law  of  this  colony,  war- 
ranting the  same,  established  by  the  General  Court,  and  suffi- 
ciently published ;  or  in  case  of  the  defects  of  a  law  in  any  par- 
ticular case,  by  some  clear  and  plain  rule  of  the  Word  of  God,  in 
which  the  whole  court  shall  concur."  *  The  trial  by  jury,  in  civil 
and  criminal  cases,  was  also  secured ;  and  if  the  court  were  dis- 
satisfied with  the  verdict,  they  might  send  back  the  jury  to  con- 
sider the  same  a  second  and  third  time,  but  not  further.^  The 
governor  was  to  be  chosen,  as  the  charter  provided,  by  the  free- 
men. Every  town  was  to  send  one  or  two  deputies  or  representa- 
tives to  the  General  Assembly ;  but  every  freeman  was  to  give  his 

1  1  Holmes's  Ann.  415,  421,  429,  442;  1  Chalm  Ann.  297,  298,301,304,306;  1 
Hutch.  Hist.  339,  406,  note. 

2  Ibid. 

8  2  Doug.  Suram.  171  to  176,  193  to  202. 

*  Colony  Laws  of  Connecticut,  edition  bj  Greene,  1715-1718,  folio,  (New  London,) 
p.  1. 

^  Id,  p.  2.  The  practice  continued  down  to  the  establishment  of  the  new  consti- 
tution in  1818. 


CH.  VII.]  CONNECTICUT.  59 

voice  in  the  election  of  assistants  and  other  public  officers.^  No 
person  was  entitled  to  be  made  a  freeman,  unless  he  owned  lands 
in  freehold  of  forty  shillings'  value  per  annum,  or  £  40  personal 
estate. 2 

§  90.  In  respect  to  offences,  their  criminal  code  proceeded  upon 
the  same  general  foundation  as  that  of  Massachusetts,  declaring 
those  capital  which  were  so  declared  in  the  Holy  Scriptures,  and 
citing  them  as  authority  for  this  purpose.  Among  the  capital 
offences  were  idolatry,  blasphemy  of  Father,  Son,  or  Holy  Ghost, 
witchcraft,  murder,  murder  through  guile  by  poisoning  or  other 
devilish  practices,  bestiality,  sodomy,  rape,  man-stealing,  false  wit- 
ness, conspiracy  against  the  colony,  arson,  children  cursing  or 
smiting  father  or  mother,  being  a  stubborn  or  rebellious  son,  and 
treason.^ 

§  91.  In  respect  to  religious  concerns,  their  laws  provided  that 
all  persons  should  attend  public  worship,  and  that  the  towns 
should  support  and  pay  the  ministers  of  religion.  And  at  first 
the  choice  of  the  minister  was  confided  to  the  major  part  of  the 
householders  of  the  town ;  the  church,  as  such,  having  nothing  to 
do  with  the  choice.  But  in  1708,  an  act  was  passed,  (doubtless 
by  the  influence  of  the  clergy,)  by  which  the  choice  of  ministers 
was  vested  in  the  inhabitants  of  the  town  who  were  church-mem- 
bers ;  and  the  same  year  the  celebrated  platform  at  Saybrook  was 
approved,  which  has  continued  down  to  our  day  to  regulate,  in  dis- 
cipline and  in  doctrine,  the  ecclesiastical  concerns  of  the  State.* 

§  92.  The  spirit  of  toleration  was  not  more  liberal  here  than  in 
most  of  the  other  colonies.  No  persons  were  allowed  to  embody 
themselves  into  church  estate  without  the  consent  of  the  General 
Assembly,  and  the  approbation  of  the  neighboring  churches ;  and 
no  ministry  or  church  administration  was  entertained  or  author- 
ized separate  from,  and  in  opposition  to,  that  openly  and  publicly 
observed  and  dispensed  by  the  approved  minister  of  the  place, 
except  with  the  approbation  and  consent  aforesaid.^  Quakers, 
Ranters,  Adamites,  and  other  notorious  heretics,  (as  they  were 
called,)  were  to  be  committed  to  prison  or  sent  out  of  the  colony, 

1  Colony  Laws  of  Connecticut,  edition  by  Greene,  1715-1718,  folio,  (New  Lon 
don,)  p.  27,  30. 

2Id.  p.  41.  8  Id.  12. 

*  Id.  p.  29,  84,  S.^,  110,  141.  The  Constitution  of  1818  has  made  a  great  change  in 
the  rights  and  powers  of  the  ministers  and  parishes  in  ecclesiastical  aflFairs. 

fi  Id,  p.  29. 


60  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

by  order  of  the  governor  and  assistants.^  Nor  does  the  zeal  of 
persecution  appear  at  all  to  have  abated  until,  in  pursuance  of  the 
statutes  of  1  William  and  Mary,  dissenters  were  allowed  the  lib- 
erty of  conscience  without  molestation. ^ 

§  93.  In  respect  to  real  estate,  the  descent  and  distribution  was 
directed  to  be  among  all  the  children,  giving  the  eldest  son  a 
double  share ;  conveyances  in  fraud  of  creditors  were  declared 
void  ;  lands  were  made  liable  to  be  set  off  to  creditors  on  execu- 
tions by  the  appraisement  of  three  appraisers.^ 

The  process  in  courts  of  justice  was  required  to  be  in  the  name 
of  the  reigning  king.*  Persons  having  no  estate  might  be  relieved 
from  imprisonment  by  two  assistants ;  but  if  the  creditor  required 
it,  he  should  satisfy  the  debt  by  service.^  Depositions  were  al- 
lowed as  evidence  in  civil  suits.^  No  person  was  permitted  to 
plead  in  behalf  of  another  person  on  trial  for  delinquency,  except 
directly  to  matter  of  law,'  a  provision  somewhat  singular  in  our 
annals,  though  in  entire  conformity  to  the  English  law  in  capital 
felonies.  Bills  and  bonds  were  made  assignable,  and  suits  allowed 
in  the  name  of  the  assignees.^ 

Magistrates,  justices  of  the  peace,  and  ministers  were  author- 
ized to  marry  persons ;  and  divorces  a  vinculo  allowed  for  adul- 
tery, fraudulent  contract,  or  desertion  for  three  years.  Men  and 
women,  having  a  husband  or  wife  in  foreign  parts,  were  not  al- 
lowed to  abide  in  the  colony,  so  separated,  above  two  years,  with- 
out liberty  from  the  General  Court. 

Towns  were  required  to  support  public  schools  under  regulations 
similar,  for  the  most  part,  to  those  of  Massachusetts ;  ^  and  an 
especial  maritime  code  was  enacted,  regulating  the  rights  and 
duties  and  authorities  of  ship-owners,  seamen,  and  others  con- 
cerned in  navigation.^^ 

Such  are  the  principal  provisions  of  the  colonial  legislation  of 
Connecticut. 

1  Colony  Laws  of  Conn.,  edition  by  Greene,  1715-1718,  folio,  (New  London,)  p. 
49. 

2  Id.  p.  134. 

8  Id.  p.  33,  61,  164.  *Id.  p.  41. 

6  Id.  p.  6.  6  Id.  p.  116. 

7  Id.  p.  26.  8  Id.  p.  7. 

9  Id.  p.  84. 

1^  Id.  p.  70.    A  similar  code  existed  in  Massachusetts,  enacted  in  1668. 


CH.  VIIL]  RHODE  ISLAND.  61 


CHAPTER    VIII. 

RHODE  ISLAND. 

§  94.  Rhode  Island  was  originally  settled  by  emigrants  from 
Massachusetts,  fleeing  thither  to  escape  from  religious  persecu- 
tion ;  and  it  still  boasts  of  Roger  Williams  as  its  founder,  and  as 
the  early  defender  of  religious  freedom  and  the  rights  of  con- 
science. One  body  of  them  purchased  the  island  which  has  given 
the  name  to  the  State,  and  another  the  territory  of  the  Providence 
Plantations  from  the  Indians,  and  began  their  settlements  in  both 
places  nearly  at  the  same  period,  viz.  in  1636  and  1638.1  They 
entered  into  separate  voluntary  associations  of  government.  But 
finding  their  associations  not  sufficient  to  protect  them  against  the 
encroachments  of  Massachusetts,  and  having  no  title  under  any 
of  the  royal  patents,  they  sent  Roger  Williams  to  England  in  1643 
to  procure  a  surer  foundation  both  of  title  and  government.  He 
succeeded  in  obtaining  from  the  Earl  of  Warwick  (in  1643)  a 
charter  of  incorporation  of  Providence  Plantations  ;  ^  and  also,  in 
1644,  a  charter  from  the  two  houses  of  Parliament  (Charles  the 
First  being  then  driven  from  his  capital)  for  the  incorporation 
of  the  towns  of  Providence,  Newport,  and  Portsmouth,  for  the 
absolute  government  of  themselves,  but  according  to  the  laws  of 
England. 3 

§  95.  Under  this  charter  an  assembly  was  convened  in  1647, 
consisting  of  the  collective  freemen  of  the  various  plantations.* 
The  legislative  power  was  vested  in  a  court  of  commissioners  of 
six  persons,  chosen  by  each  of  the  four  towns  then  in  existence. 

1  1  Hutch.  Hist.  72  ;  1  Holmes's  Annals,  225,  233,  246  ;  1  Chalm.  Annals,  269,  270 ; 
Hutch.  Coll.  413,414,415;  Marsh.  Colon,  ch.  3,  p.  99,  100;  Robertson's  America, 
B.  10  ;  2  Doug.  Summ.  76  to  90 ;  1  Pitkin's  Hist.  46.  Mr.  Chalmers  says,  that  Pror- 
idence  was  settled  in  the  beginning  of  1635;  and  Dr.  Holmes,  in  1636.  (1  Chalm. 
Annals,  270;  1  Holmes's  Annals,  233.) 

2  1  Hutch.  Hist.  39,  note ;  Walsh's  Appeal,  429  ;  1  Pitk.  Hist.  46,  47,  48  ;  2  Doug. 
Summ.  80. 

»  1  Chalm.  271,  272;  Hutch.  Coll.  415,  416;  [1  R.  I.  Hist.  Rec.  143;  Arnold, 
Hist,  of  Rhode  Island,  I.  114,  200.] 

*  1  Chalm.  Annals,  273 ;  1  Holmes's  Annals,  283 ;  Walsh's  Appeal,  429 ;  2  Dong. 
Summ.  80. 


62  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

The  whole  executive  power  seems  to  have  been  vested  in  a  presi- 
dent and  four  assistants,  who  were  chosen  from  the  freemen,  and 
formed  the  supreme  court  for  the  administration  of  justice.  Every 
township,  forming  within  itself  a  corporation,  elected  a  council  of 
six  for  the  management  of  its  peculiar  affairs,  and  for  the  settle- 
ment of  the  smallest  disputes.^  The  council  of  state  of  the  Com- 
monwealth soon  afterwards  interfered  to  suspend  their  government ; 
but  the  distractions  at  home  prevented  any  serious  interference  by 
Parliament  in  the  administration  of  their  affairs ;  and  they  con- 
tinued to  act  under  their  former  government  until  the  restoration 
of  Charles  the  Second.^  That  event  seems  to  have  given  great 
satisfaction  to  these  plantations.  They  immediately  proclaimed 
the  king,  and  sent  an  agent  to  England  ;  and  in  July,  1663,  after 
some  opposition,  they  succeeded  in  obtaining  a  charter  from  the 
crown. ^ 

§  96.  That  charter  incorporated  the  inhabitants  by  the  name  of 
the  Governor  and  Company  of  the  English  Colony  of  Rhode  Island 
and  Providence  Plantations  in  New  England  in  America,  confer- 
ring on  them  the  usual  powers  of  corporations.  The  executive 
power  was  lodged  in  a  governor,  deputy-governor,  and  ten  assist- 
ants, chosen  by  the  freemen.*  The  supreme  legislative  authority 
was  vested  in  a  General  Assembly,  consisting  of  a  governor,  deputy- 
governor,  ten  assistants,  and  deputies  from  the  respective  towns, 
chosen  by  the  freemen,  (six  for  Newport,  four  for  Providence, 
Portsmouth,  and  Warwick,  and  two  for  other  towns,)  the  governor 
or  deputy  and  six  assistants  behig  always  present.  The  General 
Assembly  were  authorized  to  admit  freemen,  choose  officers,  make 
laws  and  ordinances,  so  as  that  they  were  "  not  contrary  and  re- 
pugnant unto,  but  as  near  as  may  be  agreeable  to,  the  laws  of  this 
our  realm  of  England,  considering  the  nature  and  constitution  of 
the  place  and  people  ;  to  create  and  organize  courts  ;  to  punish 
offences  according  to  the  course  of  other  corporations  in  Eng- 
land "  ;  to  array  the  martial  force  of  the  colony  for  the  common 
defence,  and  enforce  martial  law  ;  and  to  exercise  other  important 
powers  and  prerogatives.  It  further  provided  for  a  free  fishery  on 
the  coasts ;  and  that  all  the  inhabitants  and  children  born  there 

1  1  Chalra.  Annals,  273 ;  1  Holmes's  Annals,  283. 

2  1  Chalm.  Annals,  274;  1  Holmes's  Annals,  297 ;  Marsh.  Colon,  eh.  .5,  p.  133. 

■    8  1  Chalm.  Annals,  274;  1  Holmes's  Annals,  329;   [Arnold,  Hist,  of  Rhode  Island, 
I.  290  ;  Palfrey,  Hist,  of  New  England,  II.  565.] 
*  2  Haz.  Coll.  612  to  623 ;  2  Doug.  Summ.  81. 


CH.  VIIL]  RHODE  ISLAND.  68^ 

should  enjoy  all  the  liberties  and  immunities  of  free  and  natural 
subjects  born  within  the  realm  of  England.  It  then  granted  and 
confirmed  unto  them  all  that  part  of  tlie  king's  dominions  in  New- 
England  containing  the  Narraganset  Bay  and  the  countries  and 
parts  adjacent,  bounded  westerly  to  the  middle  of  Pawcatuck 
River,  and  so  along  the  river  northward  to  the  head  thereof,  thence 
by  a  straight  line  due  north,  until  it  meet  the  south  line  of  Mas- 
sachusetts, extending  easterly  three  English  miles  to  the  most 
eastern  and  northeastern  parts  of  Narraganset  Bay,  as  the  bay 
extendeth  southerly  unto  the  mouth  of  the  river  running  towards 
Providence,  and  thence  along  the  easterly  side  or  bank  of  the  said 
river  up  to  the  falls,  called  Patucket  Falls,  and  thence  in  a  straight 
line  due  north  till  it  meets  the  Massachusetts  line.^  The  territory 
was  to  be  holden  as  of  the  manor  of  East  Greenwich  in  free  and 
common  socage.  It  further  secured  a  free  trade  w^ith  all  the  other 
colonies. 

§  97.  But  the  most  remarkable  circumstance  in  the  charter, 
and  that  which  exhibits  the  strong  feeling  and  spirit  of  the  colony, 
is  the  provision  respecting  religious  freedom.  The  charter,  after 
reciting  the  petition  of  the  inhabitants,  "  that  it  is  much  in  their 
hearts  (if  they  be  permitted)  to  hold  forth  a  lively  experiment, 
that  a  most  flourishing  civil  state  may  stand,  and  be  best  main- 
tained, and  that  among  our  English  subjects,  with  a  full  liberty  in 
religious  concernments,  and  that  true  piety,  rightly  grounded  upon 
gospel  principles,  will  give  the  best  and  greatest  security  to  sov- 
ereignty," proceeds  to  declare  :  ^  "  We  being  willing  to  encourage 
the  hopeful  undertaking  of  our  said  loyal  and  loving  subjects,  and 
to  secure  them  in  the  free  exercise  and  enjoyment  of  all  their 
civil  and  religious  rights  appertaining  to  them  as  our  loving  sub- 
jects, and  to  preserve  to  them  that  liberty  in  the  true  Christian 
faith  and  worship  of  God,  which  they  have  sought  with  so  much 
travail,  and  with  peaceful  minds  and  loyal  subjection  to  our  royal 
progenitors  and  ourselves  to  enjoy ;  and  because  some  of  the  peo- 
ple and  inhabitants  of  the  same  colony  cannot,  in  their  private 
opinion,  conform  to  the  public  exercise  of  religion  according  to 
the  liturgy,  form,  and  ceremonies  of  the  Church  of  England,  or 

1  This  is  the  substance  but  not  the  exact  words  of  the  boundaries  in  the  charter,  which 
is  given  at  large  in  2  Haz.  Coll.  612  to  623,  and  in  Rhode  Island  Laws,  editions  of  1789 
and  1822. 

2  2  Haz.  Coll.  613. 


64  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

take  or  subscribe  the  oaths  and  articles  made  and  established  in 
that  behalf;  and  for  that  the  same,  by  reason  of  the  remote  dis- 
tances of  these  places,  will,  as  we  hope,  be  no  breach  of  the  unity 
and  uniformity  established  in  this  nation,  have  therefore  thought 
fit,  and  do  hereby  publish,  grant,  ordain,  and  declare  that  our 
royal  will  and  pleasure  is,  that  no  person  within  the  said  colony,  at 
any  time  hereafter,  shall  he  anywise  molested,  punished,  disquieted^ 
or  called  in  question  for  any  differences  in  opinion  in  matters  of 
religion  ;  but  that  all  and  every  person  and  persons  may,  from  time 
to  time  and  at  all  time  hereafter,  freely  and  fully  have  and  enjoy 
his  and  their  own  judgment  and  consciences  in  matters  of  religious 
concernment  throughout  the  tract  of  land  hereafter  mentioned, 
they  behaving  themselves  peaceably  and  quietly,  not  using  this 
liberty  to  licentiousness  and  profaneness,  nor  to  the  civil  injury 
or  outward  disturbance  of  others."  ^  This  is  a  noble  declaration, 
and  worthy  of  any  prince  who  rules  over  a  free  people.  It  is 
lamentable  to  reflect  how  little  it  comports  with  the  domestic 
persecutions  authorized  by  the  same  monarch  during  his  profligate 
reign.  It  is  still  more  lamentable  to  reflect  how  little  a  similar 
spirit  of  toleration  was  encouraged  either  by  the  precepts  or  ex- 
amples of  any  other  of  the  New  England  colonies. 

§  98.  Rhode  Island  enjoys  the  honor  of  having  been,  if  not  the 
first,  at  least  one  of  the  earliest  of  the  colonies,  and  indeed  of 
modern  States,  in  which  the  liberty  of  conscience  and  freedom  of 
worship  were  boldly  proclaimed  among  its  fundamental  laws.^ 
If  at  any  time  afterwards  the  State  broke  in  upon  the  broad  and 
rational  principles  thus  established,  it  was  but  a  momentary  devi- 
ation from  the  settled  course  of  its  policy.^  At  the  present  day, 
acting  under  this  very  charter,  it  continues  to  maintain  religious 
freedom  with  all  the  sincerity  and  liberality  and  zeal  which  be- 
longed to  its  founder.  It  has  been  supposed,  that  in  the  laws 
passed  by  the  General  Assembly  first  convened  under  this  charter, 
(1644,)  Roman  Catholics  were  excluded  from  the  privileges  of 
freemen.  But  this  has  been  very  justly  doubted;  and,  indeed,  if 
well  founded,  the  act  would  deserve  all  the  reproach  which  has 
been  heaped  upon  it.*    The  first  laws,  however,  declared  that  no 

1  2  Haz.  Coll.  613 ;  [Arnold,  Hist,  of  Rhode  Island,  I.  292.] 

2  Walsh's  Appeal,  429. 

8  Hutch.  Coll.  413,  415  ;  1  Chalm.  Annals,  276,  284;  1  Holmes's  Annals,  336. 

*  On  this  subject,  see  1  Chalmers's  Annals,  276,  284 ;  and  Dr.  Holmes's  valuable  note 
to  his  Annals,  vol.  i.  p.  336,  and  Id.  p.  341 ;  Hutch.  Coll.  413,  415;  Walsh's  Appeal, 
429  to  435. 


CH.  VIII.]  RHODE  ISLAND.  65 

freeman  shall  be  imprisoned  or  deprived  of  his  freehold,  but  by 
the  judgment  of  his  peers  or  the  laws  of  the  colony ;  and  that  no 
tax  should  be  imposed  or  required  of  the  colonists,  but  by  the  act 
of  the  General  Assembly.^ 

§  99.  It  is  said  that  the  general  conduct  of  Rhode  Island  seems 
to  have  given  entire  satisfaction  to  Charles  the  Second  during  the 
residue  of  his  reign.2  Upon  the  accession  of  James  the  inhabi- 
tants were  among  the  first  to  offer  their  congratulations,  and  to 
ask  protection  for  their  chartered  rights.  That  monarch,  however, 
disregarded  their  request.  They  were  accused  of  a  violation  of 
their  charter,  and  a  quo  tvarranto  was  filed  against  them.  They 
immediately  resolved,  without  much  hesitation,  not  to  contend 
with  the  crown,  but  to  surrender  their  charter,  and  passed  an  act 
for  that  purpose  which  was  afterwards  suppressed.^  In  Decem- 
ber, 1686,  Sir  Edmund  Andros,  agreeably  to  his  orders,  dissolved 
their  government,  and  assumed  the  administration  of  the  colony. 
The  Revolution  of  1688  put  an  end  to  his  power  ;  and  the  colony 
immediately  afterwards  resumed  its  charter,  and,  though  not  with- 
out some  interruptions,  continued  to  maintain  and  exercise  its 
powers  down  to  the  period  of  the  American  Revolution.*  It  still 
continues  to  act  under  the  same  charter,  as  a  fundamental  law,  it 
being  the  only  State  in  the  Union  which  has  not  formed  a  new 
constitution  of  government.  It  seems,  that  until  the  year  1696, 
the  governor,  assistants,  and  deputies  of  the  towns  sat  together ; 
but  by  a  law  then  passed  they  were  separated,  and  the  deputies 
acted  as  a  lower  house,  and  the  governor  and  assistants  as  an 
upper  house .^ 

§  100.  In  reviewing  the  colonial  legislation  of  Rhode  Island 
some  peculiarities  are  discernible,  though  the  general  system  is 
like  that  of  the  other  parts  of  New  England.^  No  persons  but 
those  who  were  admitted  freemen  of  the  colony  were  allowed  to 
vote  at  elections,  and  they  might  do  it  in  person  or  by  proxy ; 
and  none  but  freemen  were  eligible  to  ofiice.  Wills  of  real  es- 
tate were  required  to  have  three  witnesses.     The  probate  of  wills 

1  1  Chalm.  Annals,  276;  1  Holmes's  Annals,  336;  R.  Island  Colony  Laws  (1744), 
p.  3. 

2  1  Chalm.  Annals,  278. 

•  1  Chalm.  Annals,  280,  281 ;  2  Doug.  Summ.  85. 

*  1  Chalm.  Annals,  278,  279;    1  Holmes's  Annals,  415,  420,  428,  442;   2  Doug. 
Summ.  85,  377  ;  Dunmer's  Defence,  1  American  Tracts,  7. 

6  R.  Island  Colony  Laws  (1744),  24.  «  Id.  p.  1,  147. 

VOL.  I.  5 


66  HISTORY  OF  THE   COLONIES.  [BOOK  I. 

and  the  granting  of  administrations  of  personal  estate  were  com- 
mitted to  the  jurisdiction  of  the  town  councils  of  each  town  in 
the  colony,  with  an  appeal  to  the  governor  and  council  as  su- 
preme ordinary.!  Every  town  was  a  corporate  body,  entitled  to 
choose  its  officers,  and  to  admit  persons  as  freemen.^  Sports  and 
labor  on  Sunday  were  prohibited.^  Purchases  of  land  from  the 
Indians  were  prohibited.*  By  a  formal  enactment,  in  1700,  it  was 
declared,  that  in  all  actions,  matters,  causes,  and  things  whatso- 
ever, where  no  particular  law  of  the  colony  is  made  to  decide  and 
determine  the  same,  then  in  all  such  cases  the  laws  of  England 
shall  be  put  in  force  to  issue,  determine,  and  decide  the  same,  any 
usage,  custom,  or  law  to  the  contrary  notwithstanding.^  About 
the  same  period  the  English  navigation  laws  were  required,  by  an 
act  of  the  colonial  legislature,  to  be  executed.^  Twenty  years' 
peaceful  possession  of  lands,  under  the  claim  of  a  title  in  fee- 
simple,  was  declared  to  give  a  good  and  rightful  title  to  the  fee ;  ^ 
and  thus  a  just  and  liberal  eifect  was  given  to  the  statute  of  lim- 
itations, not  as  a  bar  of  the  remedy,  but  of  the  right.  The 
acknowledgment  and  registration  of  conveyances  of  lands  in  a 
public  town  registry  were  provided  for.  The  support  of  the  min- 
istry was  made  to  depend  upon  free  contributions.  Appeals  to 
the  king  in  council,  in  cases  exceeding  X300  in  value,  were 
allowed.^  A  system  of  redress,  in  cases  of  abuses  of  property 
devoted  to  charitable  uses,  was  established ;  ^  fines  and  common 
recoveries  were  regulated  ;  and  the  trial  by  jury  established.  The 
criminal  code  was  not  sanguinary  in  its  enactments ;  and  did  not 
affect  to  follow  the  punishments  denounced  in  the  Scripture 
against  particular  offences.^^  Witchcraft,  however,  was,  as  in  the 
common  law,  punished  with  death.  At  a  later  period,  lands  of 
persons  living  out  of  the  colony  or  concealing  themselves  therein 
were  made  liable  to  the  payment  of  their  debts. ^^  In  respect  to 
the  descent  of  real  estates,  the  canons  of  the  common  law  were 
adopted,  and  the  eldest  son  took  the  whole  inheritance  by  primo- 
geniture. This  system  was  for  a  short  period  repealed  by  an  act 
(4  <fe  5  George  I.,  1718)  which  divided  the  estate  among  all  the 
children,  giving  the  eldest  son  a  double  share. ^^    g^t  the  common 

I  R.  Island  Col.  Laws  (1744),  p.  1,  4.  2  Id.  p.  9. 
3  Id.  18.                          *  Id.  4.                          5  Id.  28.                          6  i(j.  28. 

7  Id.  46.  8  Id.  87,  133.  »  Id.  108.  ^^  Id.  115. 

II  Id.  192. 

12  Colony  Laws  of  Rhode  Island  (edit.  1719,  printed  at  Boston),  pp.  95,  96. 


CE.  VIII  ]  RHODE  ISLAND.  67 

law  was  soon  afterwards  (in  1728)  reinstated  by  the  public  appro- 
bation, and  so  remained  to  regulate  descents  until  a  short  period 
(1770)  before  the  Revolution.  Contracts  for  things  above  the 
value  of  ten  pounds  were  required  to  be  in  writing ;  and  convey- 
ances in  fraud  of  creditors  were  declared  void.  And  we  may  also 
trace  in  its  legislation  provision  respecting  hue  and  cry  in  cases  of 
robbery ;  and  of  forfeiture  in  cases  of  accidental  death,  by  way  of 
deodand.^ 

§  101.  We  have  now  finished  our  review  of  all  the  successive 
colonies  established  in  New  England.  The  remark  of  Chalmers 
is  in  general  well  founded.  "  Originally  settled,"  says  he,^  "  by 
the  same  kind  of  people,  a  similar  policy  naturally  rooted  in  all 
the  colonies  of  New  England.  Their  forms  of  government,  their 
laws,  their  courts  of  justice,  their  manners,  and  their  religious 
tenets,  which  gave  birth  to  all  these,  were  nearly  the  same."  Still, 
however,  the  remark  is  subject  to  many  local  qualifications.  In 
Rhode  Island,  for  instance,  the  rigid  spirit  of  Puritanism  softened 
down  (as  we  have  seen)  into  general  toleration.  On  the  other 
hand,  the  common-law  rules  of  descents  were  adhered  to  in  its 
policy  with  singular  zeal,  down  to  the  year  1770^  as  necessary  to 
prevent  the  destruction  of  family  estates,  while  the  neighboring 
colonies  adopted  a  rule  dividing  the  inheritance  among  all  the 
children. 3 

§  102.  One  of  the  most  memorable  circumstances  in  the  history 
of  New  England  is  the  early  formation  and  establishment  of  a 
confederation  of  the  colonies  for  amity,  offence  and  defence,  and 
mutual  advice  and  assistance.  The  project  was  agitated  as  early 
as  1637  ;  but  difficulties  having  occurred,  the  articles  of  union 
were  not  finally  adopted  until  1643.*  In  the  month  of  May  of  that 
year,  the  colonies  of  Massachusetts,  Connecticut,  New  Haven,  and 
Plymouth  formed  a  confederacy  by  the  name  of  the  United  Col- 
onies of  New  England,  and  entered  into  a  perpetual  league  of 
friendship  and  amity,  for  offence  and  defence,  and  mutual  advice 
and  succor.  The  charges  of  all  wars,  offensive  and  defensive,  were 
to  be  borne  in  common,  and  according  to  an  apportionment  pro- 
vided for  in  the  articles  ;  and  in  case  of  invasion  of  any  colony, 

1  Rhode  Island  Colony  Laws  (1719),  p.  5,  8.  ^  i  Chalm.  Annals,  296. 

3  Gardner  v.  Collins,  2  Peters's  Sup.  Ct.  Rep.  58. 

*  1  Holmes's  Annals,  269,  270 ;   1  Winthrop's  Jour.  237,  284 ;  [Palfrey,  Hist,  of 
New  England,  I.  630.] 


68  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

the  others  were  to  furnish  a  certain  proportion  of  armed  men  for 
its  assistance.^  Commissioners,  appointed  by  each  colony,  were  to 
meet  and  determine  all  affairs  of  war  and  peace,  leagues,  aids, 
charges,  &c.,  and  to  frame  and  establish  agreements  and  orders 
for  other  general  interests.  This  union,  so  important  and  neces- 
sary for  mutual  defence  and  assistance  during  the  troubles  which 
then  agitated  the  parent  country,  was  not  objected  to  by  King 
Charles  the  Second,  on  his  restoration  ;  and  with  some  few  alter- 
ations, it  subsisted  down  to  1686,  when  all  the  charters  were  pros- 
trated by  the  authority  of  King  James.^  Rhode  Island  made  ap- 
plication to  be  admitted  into  this  union,  but  was  refused,  upon  the 
ground  that  the  territory  was  within  the  limits  of  Plymouth  col- 
ony. It  does  not  appear  that  subsequently  the  colony  became  a 
party  to  it.^ 

1  2  Haz.  Coll.  1  to  6  ;  2  Winthrop's  Jour.  101  to  106 ;  1  Hutch.  Hist.  124,  126. 
''^  1  Holmes's  Annals,  270  and  note;  1  Hutch.  Hist,  126,  note ;  2  Haz.  Coll.  7,  et  seq. 
8  1  Holmes's  Annals,  287  and  note ;  1  Hutch.  Hist.  124  ;  2  Haz.  Coll.  99, 100.     [The 
application  of  Rhode  Island  and  its  rejection  are  given  in  Hutch.  Coll.  226,  227] 


CH.  IX.]  MARYLAND.  69 


CHAPTER  IX. 

MARYLAND. 

§  103.  The  province  of  Maryland  was  included  originally  in  the 
patent  of  the  Southern  or  Virginia  company  ;  and  upon  the  disso- 
lution of  that  company  it  reverted  to  the  crown.  King  Charles 
the  First,  on  the  20th  June,  1632,  granted  it  by  patent  to  Cecilius 
Calvert  Lord  Baltimore,  the  son  of  George  Calvert  Lord  Balti- 
more, to  whom  the  patent  was  intended  to  have  been  made,  but  he 
died  before  it  was  executed.^  By  the  charter  the  king  erected  it 
into  a  province,  and  gave  it  the  name  of  Maryland,  in  honor  of  his 
queen,  Henrietta  Maria,  the  daughter  of  Henry  the  Fourth  of 
France,  to  be  held  of  the  crown  of  England,  he  yearly,  forever, 
rendering  two  Indian  arrows.  The  territory  was  bounded  by  a 
right  line  drawn  from  Watkin's  Point,  on  Chesapeake  Bay,  to 
the  ocean  on  the  east,  thence  to  that  part  of  the  estuary  of  Dela- 
ware on  the  north  which  lieth  under  the  40th  degree,  where  New 
England  is  terminated ;  thence  in  a  right  line,  by  the  degree 
aforesaid,  to  the  meridian  of  the  fountain  of  Potomac  ;  thence  fol- 
lowing its  course  by  the  farther  bank  to  its  confluence  with  the 
Chesapeake ;  and  thence  to  Watkin's  Point.^ 

§  104.  The  territory  thus  severed  from  Virginia  was  made  im- 
mediately subject  to  the  crown,  and  was  granted  in  full  and  abso- 
lute propriety  to  Lord  Baltimore  and  his  heirs,  saving  the  alle- 
giance and  sovereign  dominion  to  the  crown,  with  all  the  rights, 
regalities,  and  prerogatives,  which  the  Bishop  of  Durham  enjoyed 
in  that  palatinate,  to  be  held  of  the  crown  as  of  Windsor  Castle, 
in  the  county  of  Berks,  in  free  and  common  socage,  and  not  in 
capite,  or  by  knight's  service.  The  charter  further  provided  that 
the  proprietary  should  have  authority,  by  and  with  the  consent  of 
the  freemen,  or  their  delegates  assembled  for  the  purpose,  to  make 
all  laws  for  the  province,  "  so  that  such  laws  be  consonant  to 

1  1  Holmes's  Ann.  213 ;  1  Chalm.  Annals,  201,  202 ;  Bacon's  Laws  of  Maryland 
(1765) ;  2  Doug.  Summ.  353,  &c. 

'^  1  Haz.  Coll.  327  to  337 ;  1  Chalm.  Annals,  202 ;  Charters  of  N.  A.  Provinces,  4to, 
London,  1766. 


70  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

reason,  and  not  repugnant  or  contrary,  but  as  far  as  conveniently 
might  be,  agreeable  to  the  laws,  statutes,  customs,  and  rights  of 
this  our  realm  of  England."  ^  The  proprietary  was  also  vested 
with  full  executive  power ;  and  the  establishment  of  courts  of  jus- 
tice was  provided  for.  The  proprietary  was  also  authorized  to  levy 
subsidies,  with  the  assent  of  the  people  in  assembly.  The  inhabi- 
tants and  their  children  were  to  enjoy  all  the  rights,  immunities, 
and  privileges  of  subjects  born  in  England.  The  right  of  the 
advowsons  of  the  churches,  according  to  the  establishment  of  Eng- 
land, and  the  right  to  create  manors  and  courts  baron,  to  confer 
titles  of  dignity,  to  erect  ports  and  other  regalities,  were  expressly 
given  to  the  proprietary.  An  exemption  of  the  colonists  from  all 
talliages  on  their  goods  and  estates,  to  be  imposed  by  the  crown, 
was  expressly  covenanted  for  in  perpetuity ;  an  exemption  which 
had  been  conferred  on  other  colonies  for  years  only.^  License  was 
granted  to  all  subjects  to  transport  themselves  to  the  province ; 
and  its  products  were  to  be  imported  into  England  and  Ireland, 
under  such  taxes  only  as  were  paid  by  other  subjects.  And  the 
usual  powers  in  other  charters  to  repel  invasions,  to  suppress 
rebellions,  &c.,  were  also  conferred  on  the  proprietary. 

§  105.  Such  is  the  substance  of  the  patent.  And  Chalmers  has 
with  some  pride  asserted,  that  "  Maryland  has  always  enjoyed  the 
unrivalled  honor  of  being  the  first  colony  which  was  erected  into 
a  province  of  the  English  Empire  and  governed  regularly  by  laws 
enacted  in  a  provincial  legislature."  ^  It  is  also  observable  that 
there  is  no  clause  in  the  patent  which  required  any  transmission 
of  the  province  laws  to  the  king,  or  providing  for  his  approbation 
or  assent.  Under  this  charter  Maryland  continued  to  be  gov- 
erned, with  some  short  intervals  of  interruption,  down  to  the 
period  of  the  American  Revolution,  by  the  successors  of  the  origi- 
nal proprietary.* 

§  106.  The  first  emigration  made  under  the  auspices  of  Lord 
Baltimore  was  in  November,  1632,  and  consisted  of  about  two  hun- 
dred gentlemen  of  considerable  fortune  and  rank,  and  their  adher- 
ents, being  chiefly  Roman  Catholics.  "  He  laid  the  foundation  of 
this  province,"  says  Chalmers,^  "  upon  the  broad  basis  of  security  to 
property  and  of  freedom  of  religion,  granting  in  absolute  fee  fifty 

1  1  Haz.  Coll.  3  >7,  &c. ;  1  Chalm.  Annals,  202 ;  Marsh.  Colon,  ch.  2,  p.  69. 

2  1  Chalmers's  Annals,  203,  204,  205.  ^  i^.  200. 

*  Id.  203.  S  Id.  207,  208. 


CH.  IX.]  MARYLAND.  71 

acres  of  land  to  every  emigrant ;  establishing  Christianity  agree- 
ably to  the  old  common  law,  of  which  it  is  a  part,  without  allow- 
ing pre-eminence  to  any  particular  sect.  The  wisdom  of  his  choice 
soon  converted  a  dreary  wilderness  into  a  prosperous  colony."  It 
is  certainly  very  honorable  to  the  liberality  and  public  spirit  of  the 
proprietary,  that  he  should  have  introduced  into  his  fundamental 
policy  the  doctrine  of  general  toleration  and  equality  among  Chru- 
tian  sects  (for  he  does  not  appear  to  have  gone  further)  ;  and 
have  thus  given  the  earliest  example  of  a  legislator  inviting  his 
subjects  to  the  free  indulgence  of  religious  opinion.^  This  was 
anterior  to  the  settlement  of  Rhode  Island  ;  and  therefore  merits 
the  enviable  rank  of  being  the  first  recognition  among  the  colo- 
nists of  the  glorious  and  indefeasible  rights  of  conscience.  Rhode 
Island  seems,  without  any  apparent  consciousness  of  co-operation, 
to  have  gone  further,  and  to  have  protected  an  universal  freedom 
of  religious  opinion  in  Jqw  and  Gentile,  in  Christian  and  Pagan, 
without  any  distinction  to  be  found  in  its  legislation.^ 

§  107.  The  first  legislative  assembly  of  Maryland,  held  by  the 
freemen  at  large,  was  in  1634  - 1635  ;  but  little  of  their  proceed- 
ings is  known.  No  acts  appear  to  have  been  adopted  until  1638 
- 1639,3  when  provision  was  made,  in  consequence  of  an  increase 
of  the  colonists,  for  a  representative  assembly,  called  the  House 
of  Assembly,  chosen  by  the  freemen  ;  and  the  laws  passed  by  the 
assembly,  and  approved  by  the  proprietary  or  his  lieutenant,  were 
to  be  of  full  force.  The  assembly  was  afterwards  divided  into  an 
upper  and  lower  house.  At  the  same  session,  an  act,  which  may 
be  considered  as  in  some  sort  a  Magna  Charta,  was  passed,  d^ 
daring,  among  other  things,  that  "  Holy  Church  within  this  prov- 
ince shall  have  all  her  rights  and  prerogatives  "  ;  "  that  the  inhab- 
itants shall  have  all  their  rights  and  liberties  according  to  the 
great  charter  of  England  "  ;  and  that  the  goods  of  debtors,  if  not 
sufficient  to  pay  their  debts,  shall  be  sold  and  distributed  pro  rata, 
saving  debts  to  the  proprietary.*     In  1649  an  act  was  passed,  pun- 

1  1  Chalmers's  Annals,  213,  218,  219,  363.  2  WalsVs  Appeal,  429,  Note  B. 

^  [That  is  to  say,  none  were  agreed  upon  by  the  assembly  and  the  proprietary ;  but 
acts  appear  to  have  been  passed  by  the  assembly  which  were  rejected  by  tlic  proprietary, 
and  others  were  proposed  by  the  proprietary  wliich  the  assembly  refused  to  adopt.  See 
Bozman,  History  of  Maryland,  295,  300-318.  This  author  conjectures,  though  the 
records  are  silent  on  the  subject,  that  the  difficulty  between  the  proprietary  and  the 
assembly  was  that  each  claimed  the  right  to  originate  the  laws.] 

*  Bacon's  Laws  of  Maryland,  ch.  2,  of  1638 ;  1650,  ch.  1  ;  1  Marsh.  Colon.  &c.  ch. 
2,  p.  73  :  1  Chalm.  Ann.  213,  219,  220,  225. 


72  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

ishing  blasphemy,  or  denying  the  Holy  Trinity,  with  death  and 
confiscation  of  goods  and  lands  ;^  and,  strangely  enough  after 
such  a  provision,  in  the  same  act,  after  a  preamble,  reciting  that 
the  confining  of  conscience  in  matters  of  religion  hath  frequently 
fallen  out  to  be  of  dangerous  consequence,  it  is  enacted  that  no 
person  "  professing  to  believe  in  Jesus  Christ,'*  shall  be  molested 
for  or  in  respect  to  his  religion,  or  the  free  exercise  thereof,  nor 
any  way  compelled  to  the  belief  or  exercise  of  any  other  religion .^ 
It  seems  not  to  have  been  even  imagined  that  a  belief  in  the  di- 
vine mission  of  Jesus  Christ  could,  in  the  eyes  of  any  sect  of 
Christians,  be  quite  consistent  with  the  denial  of  the  Trinity. 
This  act  was  confirmed  among  the  perpetual  laws  in  1676. 

§  108.  The  legislation  of  Maryland  does  not,  indeed,  appear 
to  have  afforded  an  uniform  protection  in  respect  to  religion,  such 
as  the  original  policy  of  the  founder  would  seem  to  indicate. 
Under  the  protectorate  of  Cromwell,  Roman  Catholics  were  ex- 
pressly denied  any  protection  in  the  province ;  and  all  others, 
"  who  profess  faith  in  God  by  Jesus  Christ,  though  differing  in 
judgment  from  the  doctrine,  worship,  or  discipline  publicly  held 
forth,"  were  not  to  be  restrained  from  the  exercise  of  their  relig- 
ion.^  In  1696  the  Church  of  England  was  established  in  the 
province  ;  and  in  1702,  the  liturgy  and  rites  and  ceremonies  of 
the  Church  of  England  were  required  to  be  pursued  in  all  the 
churches,  with  such  toleration  for  dissenters,  however,  as  was  pro- 
vided for  in  the  act  of  1  William  and  Mary.*  And  the  introduc- 
tion of  the  test  and  abjuration  acts,  in  1716,  excluded  all  Roman 
Catholics  from  office.^ 

§  109.  It  appears  to  have  been  a  policy  adopted  at  no  great 
distance  of  time  after  the  settlement  of  the  colony  to  provide  for 
the  public  registration  of  conveyances  of  real  estates.^  In  the 
silence  of  the  statute-book  until  1715,  it  is  to  be  presumed  that  the 
system  of  descents  of  intestate  estates  was  that  of  the  parent 
country.     In  that  year  an  act  passed,^  which  made  the  estate  part- 

1  1  Chalm.  Annals,  223,  365  ;  Bacon's  Laws  of  Maryland,  1649. 

2  Bacon's  Laws  of  Maryland,  1649,  ch.  1  ;  1  Chalmers's  Annals,  218,  219,  235. 

3  Bacon's  Laws  of  Maryland,  1654,  ch.  4  ;  Marsh.  Colon,  ch.  2,  p.  75  ;  Chalm.  Ann. 
218,  235. 

*  Bacon's  Laws  of  Maryland,  1702,  ch.  1. 

5  Bacon's  Laws  of  Maryland,  1716,  ch.  5 ;  Walsh's  Appeal,  49,  50 ;  1  Holmes's  An- 
nals, 476,  489. 
^  Bacon's  Laws  of  Maryland,  1674. 
■^  Bacon's  Laws  of  Maryland,  1715,  ch.  39. 


CH.  IX.]  MARYLAND.  78 

ible  among  all  the  children  ;  and  the  system  thus  introduced  has, 
in  its  substance,  never  since  been  departed  from.  Maryland,  too, 
like  the  other  colonies,  was  early  alive  to  the  importance  of  pos- 
sessing the  sole  power  of  internal  taxation ;  and  accordingly,  in 
1650,1  it  was  declared  that  no  taxes  should  be  levied  without  the 
consent  of  the  general  assembly. 

§  110.  Upon  the  Revolution  of  1688,  the  government  of  Mary- 
land was  seized  into  the  hands  of  the  crown,  and  was  not  again 
restored  to  the  proprietary  until  1716.  From  that  period  no 
interruption  occurred  until  the  American  Revolution.^ 

1  Bacon's  Laws  of  Maryland,  1650,  ch.  25 ;  1  Chalm.  Ann.  220. 

2  Bacon's  Laws  of  Maryland,  1692,  1716. 


74  HISTORY  OF  THE  COLONIES.  [BOOK  I. 


CHAPTER   X. 

NEW   YORK. 

§  111.  New  York  was  originally  settled  by  emigrants  from 
Holland,  at  least  as  early  as  1614.^  Trading-houses  were  estab- 
lished on  Manhattan  Island  by  them,  under  the  auspices  of  the 
Dutch  West  India  Company,  about  1621.2  But  the  permanent 
establishment  of  a  Dutch  colony  there  does  not  appear  to  have 
been  fixed  until  about  1629,  when  it  seems  to  have  acquired  the 
name  of  the  New  Netherlands.^  But  the  English  government 
seems  at  all  times  to  have  disputed  the  right  of  the  Dutch  to  make 
any  settlement  in  America ;  and  the  territory  occupied  by  them 
was  unquestionably  within  the  chartered  limits  of  New  England 
granted  to  the  council  of  Plymouth.*  Charles  the  Second,  soon 
after  his  restoration,  instigated  as  much  by  personal  antipathy  as 
by  a  regard  for  the  interest  of  the  crown,  determined  to  maintain 
his  right,  and  in  March,  1664,  granted  a  patent  to  his  brother,  the 
Duke  of  York  and  Albany,  by  which  he  conveyed  to  him  the 
region  extending  from  the  western  bank  of  the  Connecticut  to  the 
eastern  shore  of  the  Delaware,  together  with  Long  Island,  and 
conferred  on  him  the  powers  of  government,  civil  and  military .^ 
Authority  was  given  (among  other  things)  to  correct,  punish,  par- 
don, govern,  and  rule  all  subjects  that  should  inhabit  the  territory, 
according  to  such  laws,  ordinances,  &c.,as  the  Duke  should  estab- 
lish, so  always  that  the  same  "  were  not  contrary,  but  as  near  as 
might  be  agreeable  to  the  laws  and  statutes  and  government  of  the 
realm  of  England,"  saving  to  the  crown  a  right  to  hear  and  deter- 
mine all  appeals.  The  usual  authority  was  also  given  to  use  and 
exercise  martial  law  in  cases  of  rebellion,  insurrection,  mutiny, 
and  invasion.^    A  part  of  this  tract  was  afterwards  conveyed  by 

1  1  Chalmers's  Annals,  567,  568.  2  j^,  570.  3  15;^, 

*  1  Chalmers's  Annals,  568,  569,  570,  572 ;  Marsh.  Colon,  ch.  5,  p.  143 ;  2  Doug. 
Sumra.  220,  &c. 

^  Smith's  New  Jersey,  35,  59 ;  1  Chalmers's  Annals,  573 ;  Smith's  New  York,  p. 
31  flO]  ;  Smith's  New  Jersey,  p.  210  to  215. 

^  I  copy  from  the  recital  of  it  in  Smith's  History  of  New  Jersey  in  the  surrender  of 
1702,  of  the  provinces  of  East  and  West  Jersey. 


CH.  X.]  NEW  YORK.  76 

the  Duke,  by  deed  of  lease  and  release,  in  June  of  the  same  year, 
to  Lord  Berkeley  and  Sir  George  Carteret.  By  this  latter  grant 
they  were  entitled  to  all  the  tract  adjacent  to  New  England,  lying 
westward  of  Long  Island  and  bounded  on  the  east  by  the  main 
sea  and  partly  by  Hudson's  River,  and  upon  the  west  by  Delaware 
Bay  or  River,  and  extending  southward  to  the  main  ocean  as  far 
as  Cape  May  at  the  mouth  of  Delaware  Bay,  and  to  the  northward 
as  far  as  the  northernmost  branch  of  Delaware  Bay  or  River,  which 
is  41  degrees  40  minutes  latitude  ;  which  tract  was  to  be  called 
by  the  name  of  Nova  Ca^sarea,  or  New  Jersey.^  So  that  the  terri- 
tory then  claimed  by  the  Dutch  as  the  New  Netherlands  was  di- 
vided into  the  colonies  of  New  York  and  New  Jersey. 

§  112.  In  September,  1664,  the  Dutch  colony  was  surprised  by 
a  British  armament  which  arrived  on  the  coast,  and  was  compelled 
to  surrender  to  its  authority.  By  the  terms  of  the  capitulation  the 
inhabitants  were  to  continue  free  denizens  and  to  enjoy  their  prop- 
erty. The  Dutch  inhabitants  were  to  enjoy  the  liberty  of  their 
conscience  in  divine  worship  and  church  discipline,  and  their  own 
customs  concerning  their  inheritances. ^  The  government  was 
instantly  assumed  by  right  of  conquest  in  behalf  of  the  Duke  of 
York,  the  proprietary,  and  the  territory  was  called  New  York. 
Liberty  of  conscience  was  granted  to  all  settlers.  No  laws  con- 
trary to  those  of  England  were  allowed ;  and  taxes  were  to  be 
levied  by  authority  of  a  general  assembly.^  The  peace  of  Breda, 
in  1667,  confirmed  the  title  in  the  conquerors  by  the  rule  of  uti 
possidetis.^  In  the  succeeding  Dutch  war  the  colony  was  recon- 
quered ;  but  it  was  restored  to  the  Duke  of  York  upon  the  suc- 
ceeding peace  of  1674.^ 

§  113.  As  the  validity  of  the  original  grant  to  the  Duke  of 
York,  while  the  Dutch  were  in  quiet  possession  of  the  country, 
was  deemed  questionable,  he  thought  it  prudent  to  ask,  and  he 
accordingly  obtained  a  new  grant  from  the  crown  in  June,  1674.^ 
It  confirmed  the  former  grant,  and  empowered  him  to  govern  the 
inhabitants  by  such  ordinances  as  he  or  his  assigns  should  estab- 

1  Smith's  New  York,  31,  32  [10,  11] ;  1  Chalmers's  Annals,  613. 

2  Smith's  New  York,  44,  45  [19,  20]  ;  1  Chalm.  Ann.  574;  Smith's  New  Jersey,  36, 
43,  44  ;  2  Doug.  Summ.  223. 

8  1  Chalmers's  Annals,  575,  577,  579,  597  ;  Smith's  New  Jersey,  44,  48. 

*  1  Chalmers's  Annals,  578 ;  2  Doug.  Summ.  223. 

s  1  Chalmers's  Annals,  579  ;  1  Holmes's  Annals,  364,  366. 

6  Smith's  New  York,  61  [32] ;  1  Chalm.  Annals,  579. 


76  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

lish.  It  authorized  him  to  administer  justice  according  to  the 
laws  of  England,  allowing  an  appeal  to  the  king  in  council.^  It 
prohibited  trade  thither  without  his  permission  ;  and  allowed  the 
colonists  to  import  merchandise  upon  paying  customs  according  to 
the  laws  of  the  realm.  Under  this  charter  he  ruled  the  province 
until  his  accession  to  the  throne .^  No  general  assembly  was 
called  for  several  years  ;  and  the  people  having  become  clamorous 
for  the  privileges  enjoyed  by  other  colonists,  the  governor  was,  in 
1682,  authorized  to  call  an  assembly,  which  was  empowered  to 
make  laws  for  the  general  regulation  of  the  State,  which,  however, 
were  of  no  force  without  the  ratification  of  the  proprietary .^ 
Upon  the  Revolution  of  1688,  the  people  of  New  York  immediately 
took  side  in  favor  of  the  Prince  of  Orange.*  From  this  era  they 
were  deemed  entitled  to  all  the  privileges  of  British  subjects, 
inhabiting  a  dependent  province  of  the  state.  No  charter  was 
subsequently  granted  to  them  by  the  crown ;  and  therefore  they 
derived  no  peculiar  privileges  from  that  source.^ 

§  114.  The  government  was  henceforth  administered  by  gov- 
ernors appointed  by  the  crown.  But  no  effort  was  made  to  con- 
duct the  administration  without  the  aid  of  the  representatives  of 
the  people  in  general  assembly.  On  the  contrary,  as  soon  as  the 
first  royal  governor  arrived  in  1691,  an  assembly  was  called  which 
passed  a  number  of  important  acts.  Among  others  was  an  act 
virtually  declaring  their  right  of  representation,  and  their  right  to 
enjoy  the  liberties  and  privileges  of  Englishmen  by  Magna  Charta.^ 
It  enacted  that  the  supreme  legislative  power  shall  forever  reside 
in  a  governor  and  council  appointed  by  the  crown,  and  the  people 
by  their  representatives  (chosen  in  the  manner  pointed  out  in  the 
act)  convened  in  general  assembly.  It  further  declared  that  all 
lands  should  be  held  in  free  and  common  socage  according  to  the 
tenure  of  East  Greenwich  in  England  ;  that  in  all  criminal  cases 
there  should  be  a  trial  by  jury ;  that  estates  of  femes  covert  should 
be  conveyed  only  by  deed  upon  privy  examination  ;  that  wills  in 

1  1  Chalmers's  Annals,  579,  580. 

a  1  Chalmers's  Annals,  581,  583  ;  Smith's  New  York,  123,  125,  126  [72,  75]. 

8  1  Chalm.  Annals,  584,  585  ;  Smith's  New  York,  127  [75];  1  Holmes's  Annals,  409. 
In  the  year  1683  certain  fundamental  regulations  were  passed  by  the  legislature,  which 
will  be  found  in  an  Appendix  to  the  second  volume  of  the  old  edition  of  the  New  York 
Laws. 

*  1  Holmes's  Annals,  429 ;  Smith's  New  York,  59. 

6  1  Chalm.  Annals,  585,  590,  591,  592. 

6  1  Holmes's  Annals,  435  ;  Smith's  New  York,  127  [75,  76] ;  Acts  of  1691. 


CH.  X.]  NEW  YORK.  77 

writing,  attested  by  three  or  more  credible  witnesses,  should  be 
sufficient  to  pass  lands ;  that  there  should  be  no  fines  upon  aliena- 
tions, or  escheats  and  forfeitures  of  lands,  except  in  cases  of 
treason ;  that  no  person  should  hold  any  office  unless  upon  his 
appointment  he  would  take  the  oaths  of  supremacy,  and  the  test 
prescribed  by  the  act  of  Parliament  ;i  that  no  tax  or  talliage 
should  be  levied  but  by  the  consent  of  the  general  assembly ;  and 
that  no  person  professing  faith  in  Jesus  Christ  should  be  disturbed 
or  questioned  for  different  opinions  in  religion,  with  an  exception 
of  Roman  Catholics.  The  act,  however,  was  repealed  by  King 
William  in  1697.^  Another  act  enabling  persons  who  were  scru- 
pulous of  taking  oaths,  to  make  in  lieu  thereof  a  solemn  promise  to 
qualify  them  as  witnesses,  jurors,  and  officers.  In  the  year  1693, 
an  act  was  passed  for  the  maintenance  of  ministers  and  churches 
of  the  Protestant  religion.  New  York  (like  Massachusetts) 
seemed  at  all  times  determined  to  suppress  the  Romish  Church. 
In  an  act  passed  in  the  beginning  of  the  last  century  it  was  de- 
clared that  every  Jesuit  and  Popish  priest  who  should  continue  in 
the  colony  after  a  given  day  should  be  condemned  to  perpetual  im- 
prisonment ;  and  if  he  broke  prison  or  escaped  and  was  retaken, 
he  was  to  be  put  to  death.  And  so  little  were  the  spirit  of  tolera- 
tion and  the  rights  of  conscience  understood  at  a  much  later 
period,  that  one  of  her  historians  ^  a  half-century  afterwards  gave 
this  exclusion  the  warm  praise  of  being  worthy  of  perpetual  dura- 
tion. And  the  constitution  of  New  York,  of  1777,*  required  all 
persons  naturalized  by  the  State  to  take  an  oath  of  abjuration  of 
all  foreign  allegiance,  and  subjection  in  all  matters,  ecclesiastical 
as  well  as  civil.  This  was  doubtless  intended  to  exclude  all  Catho- 
lics, who  acknowledged  the  spiritual  supremacy  of  the  Pope,  from 
the  benefits  of  naturalization.^  In  examining  the  subsequent  legis- 
lation of  the  province,  there  do  not  appear  to  be  any  very  striking 
deviations  from  the  laws  of  England;  and  the  common  law, 
beyond  all  question,  was  the  basis  of  its  jurisprudence.  The 
common-law  course  of  descents  appears  to  have  been  silently  but 

1  1  Holmes's  Annals,  435  ;    Smith's  New  York,  127    [75,  76]  ;  Prov.  Laws  of 
1691. 

2  1  Holmes's  Annals,  434;  Province  Laws  of  1691 ;  Smith's  New  York,  127  [76] ; 
2  Kent's  Comra.  Lect.  25,  p.  62,  63. 

8  Mr.  Smith. 

*  Art.  42. 

^  2  Kent's  Comm.  Lect.  25,  p.  62,  63. 


78  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

exclusively  followed ;  ^  and  perhaps  New  York  was  more  close  in 
adoption  of  the  policy  and  legislation  of  the  parent  country  before 
the  Revolution  than  any  other  colony. 

1  I  do  not  find  any  act  respecting  the  distribution  of  intestate  estates  in  the  statute- 
book,  except  that  of  1697,  which  seems  to  have  in  view  only  the  distribution  of  per- 
sonal estate  substantially  on  the  basis  of  the  statute  of  distribution  of  Charies  the 
Second.  • 


CH.  XI.]  NEW  JERSEY  79 


CHAPTER    XI. 

NEW  JERSEY. 

§  115.  New  Jersey,  as  we  have  already  seen,  was  a  part  of  the 
territory  granted  to  the  Duke  of  York,  and  was  by  him  granted, 
in  June,  1664,  to  Lord  Berkeley  and  Sir  George  Carteret,  with  all 
the  rights,  royalties,  and  powers  of  government  which  he  himself 
possessed.^  The  proprietors,  for  the  better  settlement  of  the  terri- 
tory, agreed  in  February,  1664  - 1665,  upon  a  constitution  or  con- 
cession of  government,  which  was  so  much  relished  that  the 
eastern  part  of  the  province  soon  contained  a  considerable  popu- 
lation. By  this  constitution  it  was  provided  that  the  executive 
government  should  be  administered  by  a  governor  and  council, 
who  should  have  the  appointment  of  officers ;  and  that  there 
should  be  a  legislative  or  general  assembly,  to  be  composed  of  the 
governor  and  council,  and  deputies  chosen  by  the  people.  The 
general  assembly  were  to  have  power  to  make  all  laws  for  the 
government  of  the  province,  so  that  "  the  same  be  consonant  to 
reason,  and  as  near  as  may  be  conveniently  agreeable  to  the  laws 
and  customs  of  his  Majesty's  realm  of  England  " ;  to  constitute 
courts,  to  levy  taxes,  to  erect  manors  and  ports  and  incorpora- 
tions.^  The  registry  of  title-deeds  of  land  and  the  granting 
thereof,  as  a  bounty  to  planters,  were  also  provided  for.  Liberty 
of  conscience  was  allowed,  and  a  freedom  from  molestation  guar- 
anteed on  account  of  any  difference  in  opinion  or  practice  in  mat- 
ters of  religious  concernments,  so  always  that  the  civil  peace  was 
not  disturbed.  But  the  general  assembly  were  to  be  at  liberty  to 
appoint  ministers  and  establish  their  maintenance,  giving  liberty 
to  others  to  maintain  what  ministers  they  pleased.  Every  inhabi- 
tant was  bound  to  swear  or  subscribe  allegiance  to  the  king ;  and 
the  general  assembly  might  grant  naturalization.^ 

§  116.   This  constitution  continued  until  the  province  was  di- 

1  1    Chalm.  Ann.  613;    Smith's  New  York,  p.  31    [11];   Smith's  N.  Jersey,  60; 
Marsh.  Colon.  177  to  180 ;  2  Doug.  Summ.  220,  &c.,  231,  267,  &c. 
'■^  Smith's  New  Jersey,  6  Appx.  512  ;  1  Chalm.  Annals,  614. 
3  Smith's  New  Jersey,  512,  514. 


80  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

vided,  in  1676,  between  the  proprietors.  By  that  division  East 
New  Jersey  was  assigned  to  Carteret,  and  West  New  Jersey  to 
William  Penn  and  others,  who  had  purchased  of  Lord  Berkeley.^ 
Carteret  then  explained  and  confirmed  the  former  concessions  for 
the  territory  thus  exclusively  belonging  to  himself.  The  propri- 
etors also  of  West  Jersey  drew  up  another  set  of  concessions  for 
the  settlers  within  that  territory.  They  contain  very  ample  privi- 
leges to  the  people.  It  was  declared  that  the  common  law,  or 
fundamental  rights  and  privileges  of  West  New  Jersey,  therein 
stated,  are  to  be  the  foundation  of  government,  not  alterable  by 
the  legislature.  Among  these  fundamentals  were  the  following : 
"  That  no  man,  nor  number  of  men  upon  earth,  hath  power  or 
authority  to  rule  over  men's  consciences  in  religious  matters  "  ;  ^ 
that  no  person  shall  be  anyways  called  in  question  or  in  the  least 
punished,  or  either,  for  the  sake  of  his  opinion,  judgment,  faith, 
or  worship  towards  God  in  matters  of  religion ;  that  there  shall 
be  a  trial  by  jury  in  civil  and  criminal  cases  ;  that  there  shall  be 
a  general  assembly  of  representatives  of  the  people,  who  shall 
have  power  to  provide  for  the  proper  administration  of  the  govern- 
ment, and  to  make  laws,  so  "  that  the  same  be,  as  near  as  may  be 
conveniently,  agreeable  to  the  primitive,  ancient,  and  fundamental 
laws  of  England."  ^ 

§  117.  Whether  these  concessions  became  the  general  law  of 
the  province  seems  involved  in  some  obscurity.  There  were  many 
difficulties  and  contests  for  jurisdiction  between  the  governors  of 
the  Duke  of  York  and  the  proprietors  of  the  Jerseys ;  and  these 
were  not  settled  until  after  the  Duke,  in  1680,*  finally  surrendered 
all  right  to  both  by  letters-patent  granted  to  the  respective  propri- 
etors.^ In  1681,  the  governor  of  the  proprietors  of  West  Jersey, 
with  the  consent  of  the  general  assembly,  made  a  frame  of  gov- 
ernment embracing  some  of  the  fundamentals  in  the  former  con- 
cessions.^ There  were  to  be  a  governor  and  council,  and  a  general 
assembly  of  representatives  of  the  people.  The  general  assembly 
had  the  power  to  make  laws,  to  levy  taxes,  and  to  appoint  officers. 
Liberty  of  conscience  was  allowed,  and  no  persons  rendered  inca- 

1  Smith's  New  Jersey,  61,  79,  80,  87  ;  1  Chalm.  Ann.  617. 

*  Smith's  New  Jersey,  80,  App.  521,  &c. 
»  Ibid. 

*  Chalmers  says  in  1680,  p.  619.     Smith  says  in  1678,  p.  111. 
6  Smith's  New  Jersey,  110,  111 ;  1  Chalm.  Ann.  619,  626. 

*  Smith's  .New  Jersey,  126. 


CH.  XI.]  NEW  JERSEY.  81 

pable  of  office  in  respect  of  their  faith  and  worship.  West  Jer- 
sey continued  to  be  governed  in  this  manner  until  the  surrender 
of  the  proprietary  government,  in  1702.^ 

§  118.  Carteret  died  in  1679,  and  being  the  sole  proprietor  of 
East  Jersey,  by  his  will  he  ordered  it  to  be  sold  for  payment  of  his 
debts ;  and  it  was  accordingly  sold  to  William  Penn  and  eleven 
others,  who  were  called  the  Twelve  Proprietors.  They  afterwards 
took  twelve  more  into  the  proprietaryship ;  and  to  the  twenty-four 
thus  formed,  the  Duke  of  York,  in  March,  1682,  made  his  third 
and  last  grant  of  East  Jersey .^  Very  serious  dissensions  soon 
arose  between  the  two  provinces  themselves,  as  well  as  between 
them  and  New  York,  which  banished  moderation  from  their  coun- 
cils, and  threatened  the  most  serious  calamities.  A  quo  warranto 
was  ordered  by  the  crown,  in  1686,  to  be  issued  against  both  prov- 
inces. East  Jersey  immediately  offered  to  be  annexed  to  West 
Jersey,  and  to  submit  to  a  governor  appointed  by  the  crown. 
Soon  afterwards  the  crown  ordered  the  Jerseys  to  be  annexed  to 
New  England ;  and  the  proprietors  of  East  Jersey  made  a  formal 
surrender  of  its  patent,  praying  only  for  a  new  grant,  securing 
their  right  of  soil.  Before  this  request  could  be  granted,  the  Revo- 
lution of  1688  took  place,  and  they  passed  under  the  allegiance  of 
a  new  sove reign. ^ 

§  119.  From  this  period  both  of  the  provinces  were  in  a  great 
state  of  confusion  and  distraction,  and  remained  so  until  the 
proprietors  of  both  made  a  formal  surrender  of  all  their  powers 
of  government,  but  not  of  their  lands,  to  Queen  Anne,  in  April, 
1702.  The  queen  immediately  reunited  both  provinces  into  one  ; 
and  by  commission  appointed  a  governor  over  it.  He  was  thereby 
authorized  to  govern  with  the  assistance  of  a  council,  and  to  call 
general  assemblies  of  representatives  of  the  people  to  be  chosen 
by  the  freeholders,  who  were  required  to  take  the  oath  of  allegiance 
and  supremacy,  and  the  tests  provided  by  the  acts  of  Parliament. 
The  general  assembly,  with  the  consent  of  the  governor  and  coun- 
cil, were  authorized  to  make  laws  and  ordinances  for  the  welfare 
of  the  people  "  not  repugnant,  but,  as  near  as  may  be,  agreeable 
unto  the  laws  and  statutes  of  this  our  kingdom  of  England "  ; 
which  laws  were,  however,  to  be  subject  to  the  approbation  or  dis- 

1  Smith's  New  Jersey,  154. 

'-5  Smith's  New  Jersey,  157  ;  1  Chalmers's  Annals,  620,  621  ;  Marshall's  Colon.  180. 
8  1  Chalm.  Ann.  621,  622  ;  Smith's  New  Jersey,  209,  210,  211,  &c. 
VOL.  I.  6 


82  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

sent  of  the  crown.^  The  governor,  with  the  consent  of  the  council, 
was  to  erect  courts  of  justice,  to  appoint  judges  and  other  officers, 
to  collate  to  churches  and  benefices,  and  to  command  the  military- 
force.  Liberty  of  conscience  was  allowed  to  all  persons  but 
Papists. 

§  120.  From  this  time  to  the  American  Revolution  the  province 
was  governed  without  any  charter  under  royal  commissions,  sub- 
stantially in  the  manner  pointed  out  in  the  first.  The  people 
always  strenuously  contended  for  the  rights  and  privileges  guar- 
anteed to  them  by  the  former  concessions;  and  many  struggles 
occurred  from  time  to  time  between  their  representatives  and  the 
royal  governors  on  this  subject.^ 

1  Smith's  New  Jersey,  220  to  230,  231  to  261. 

2  Smith's  New  Jersey,  ch.  14,  and  particularly  p.  265,  &c.,  p.  269,  &c.,  275,  292,  304. 

See  Arnold  v. ,  1  Halsted's  Rep.  1 ,  as  to  the  rights  of  the  proprietaries  in  the  soil 

after  surrender  of  the  government  to  the  crown. 


CH.  XII.]  PENNSYLVANIA.  88 


CHAPTER  XII. 

PENNSYLVANIA. 

§  121.  Pennsylvania  was  originally  settled  by  different  detach- 
ments of  planters,  under  various  authorities,  Dutch,  Swedes,  and 
others,  which  at  different  times  occupied  portions  of  land  on  South 
or  Delaware  River .^  The  ascendency  was  finally  obtained  over 
these  settlements  by  the  governors  of  New  York,  acting  under  the 
charter  of  1664,  to  the  Duke  of  York.  Chalmers,  however,  does 
not  scruple  to  say,  that  "  it  is  a  singular  circumstance  in  the  his- 
tory of  this  [then]  inconsiderable  colony,  that  it  seems  to  have 
been  at  all  times  governed  by  usurpers,  because  their  titles  were 
defective."  ^  It  continued  in  a  feeble  state  until  the  celebrated 
William  Penn,  in  March,  1681,  obtained  a  patent  from  Charles  the 
Second,  by  which  he  became  the  proprietary  of  an  ample  territory 
which,  in  honor  of  his  father,  was  called  Pennsylvania.  The 
boundaries  described  in  the  charter  were  on  the  east,  by  Dela- 
ware River,  from  twelve  miles  distance  northwards  of  New  Castle 
town  to  the  43d  degree  of  north  latitude,  if  the  said  river  doth 
extend  so  far  northward ;  but  if  not,  then  by  said  river  so  far  as 
it  doth  extend  ;  and  from  the  head  of  the  river  the  eastern  bounds 
are  to  be  determined  by  a  meridian  line,  to  be  drawn  from  the 
head  of  said  river  unto  the  said  43d  degree  of  north  latitude. 
The  said  lands  to  extend  westward  five  degrees  in  longitude,  to  be 
computed  from  the  said  eastern  bounds,  and  the  said  lands  to  be 
bounded  on  the  north  by  the  beginning  of  the  43d  degree  of  north 
latitude  ;  and  on  the  south  by  a  circle  drawn  at  twelve  miles'  dis- 
tance from  New  Castle,  northward  and  westward,  to  the  beginning 
of  the  40th  degree  of  northern  latitude ;  and  then  by  a  straight 
line  westward  to  the  limits  of  the  longitude  above  mentioned.^ 

§  122.  The  charter  constituted  Penn  the  true  and  absolute  pro- 
prietary of  the  territory  thus  described,  (saving  to  the  crown  the 
sovereignty  of  the  country,  and  the  allegiance  of  the  proprietary  and 

1  1  Chalm.  Annals,  630  to  634;  Smith's  New  York,  [31]  49;  1  Proud,  Penn.  110, 
111,  112,  113,  116,  118,  119,  122;  2  Doug.  Summ.  297,  &c. 

2  1  Chalm.  Annals,  634,  635.  »  1  Proud,  Penn.  112. 


84  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

the  inhabitants,)  to  be  holden  of  the  crown,  as  of  the  castle  of 
Windsor,  in  Berks,  in  free  and  common  socage,  and  not  in  capite,  or 
by  knight  service  ;  and  erected  it  into  a  province  and  seignory  by 
the  name  of  Pennsylvania.  It  authorized  the  proprietary  and  his 
heirs  and  successors  to  make  all  laws  for  raising  money  and  other 
purposes,  with  the  assent  of  the  freemen  of  the  country,  or  their  depu- 
ties assembled  for  the  purpose.^  But  *'  the  same  laws  were  to  be 
consonant  to  reason,  and  not  repugnant  or  contrary,  but  as  near  as 
conveniently  may  be,  agreeable  to  law  and  statutes  and  rights  of 
this  our  kingdom  of  England."  ^  The  laws  for  the  descent  and 
enjoyment  of  lands,  and  succession  to  goods,  and  of  felonies,  to  be 
according  to  the  course  in  England  until  altered  by  the  assembly. 
All  laws  were  to  be  sent  to  England  within  five  years  after  the 
making  of  them,  and  if  disapproved  of  by  the  crown  within  six 
months,  to  become  null  and  void.^  It  also  authorized  the  proprie- 
tary to  appoint  judges  and  other  officers ;  to  pardon  and  reprieve 
criminals ;  to  establish  courts  of  justice,  with  a  right  of  appeal  to 
the  crown  from  all  judgments  ;  to  create  cities  and  other  corpora- 
tions ;  to  erect  ports  and  manors,  and  courts  baron  in  such  manors. 
Liberty  was  allowed  to  subjects  to  transport  themselves  and  their 
goods  to  the  province  ;  and  to  import  its  products  into  England ; 
and  to  export  them  from  thence  within  one  year,  the  inhabitants 
observing  the  acts  of  navigation,  and  all  other  laws  in  this  behalf 
made.  It  was  further  stipulated  that  the  crown  should  levy  no  tax, 
custom,  or  imposition  upon  the  inhabitants  or  their  goods,  unless 
by  the  consent  of  the  proprietary  or  assembly,  "  or  by  act  of  Par- 
liament in  England."  Such  are  the  most  important  clauses  of 
this  charter,  which  has  been  deemed  one  of  the  best  drawn  of  the 
colonial  charters,  and  which  underwent  the  revision,  not  merely 
of  the  law-officers  of  the  crown,  but  of  the  tlien  Lord  Chief  Jus- 
tice (North)  of  England.*  It  has  been  remarked,  as  a  singular 
omission  in  this  charter,  that  there  is  no  provision  that  the  inhab- 
itants and  their  children  shall  be  deemed  British  subjects,  and 
entitled  to  all  the  liberties  and  immunities  thereof,  such  a  clause 
being  found  in  every  other  charter.^     Chalmers  ^  has  observed  that 

1  1  Proud,  Penn.  176 ;  La'vs  of  Pennsyl.,  ed.  of  Franklin,  1742,  App.; 

2  I  Proud,  Penn.  175,  176,  177. 
8  1  Proud,  Penn.  177,  178. 

*  1  Clialm   Annals,  636,  637. 

6  1  Graham's  Hist,  of  Colon.  41,  note ;  1  Chalm.  Annals,  639,  658. 

6  1  Chalm.  Annals,  639,  658. 


CH.  XII.]  PENNSYLVANIA.  86 

the  clause  was  wholly  unnecessary,  as  the  allegiance  to  the  crown 
was  reserved  ;  and  the  common  law  thence  inferred,  tliat  all  the 
inhabitants  were  subjects,  and  of  course  were  entitled  to  all  the 
privileges  of  Englishmen. 

§  123.  Penn  immediately  invited  emigration  to  his  province  by 
holding  out  concessions  of  a  very  liberal  nature  to  all  settlers ;  ^ 
and  under  his  benign  and  enlightened  policy  a  foundation  was 
early  laid  for  the  establishment  of  a  government  and  laws  which 
have  been  justly  celebrated  for  their  moderation,  wisdom,  and  pro- 
tection of  the  rights  and  liberties  of  the  people.^  In  the  introduc- 
tion to  his  first  frame  of  government,  he  lays  down  this  proposi- 
tion, which  was  far  beyond  the  general  spirit  of  that  age,  that 
"  any  government  is  free  to  the  people  under  it,  whatever  be  the 
frame,  where  the  laws  rule,  and  the  people  are  a  party  to  those 
laws ;  and  more  than  this  is  tyranny,  oligarchy,  or  confusion.'*  ^ 
In  that  frame  of  government,  after  providing  for  the  organization 
of  it  under  the  government  of  a  governor,  council,  and  general 
assembly,  chosen  by  the  people,  it  was  declared  that  all  persons 
acknowledging  one  Almighty  God,  and  living  peaceably,  shall  be 
in  no  ways  molested  for  their  religious  persuasion  or  practice  in 
matters  of  faith  or  worship,  or  compelled  to  frequent  or  maintain 
any  religious  worship,  place,  or  ministry.*  Provisions  were  also 
made  securing  the  right  of  trial  by  jury,  and  the  right  to  dispose 
of  property  by  will,  attested  by  two  witnesses  ;  making  lands  in 
certain  cases  liable  to  the  payment  of  debts  ;  giving  to  seven  years' 
quiet  possession  the  efficacy  of  an  unquestionable  title ;  requiring 
the  registry  of  grants  and  conveyances,  and  declaring  that  no 
taxes  should  be  levied  but  by  a  law  for  that  purpose  made.^ 
Among  other  things  truly  honorable  to  the  memory  of  this  great 
man,  is  the  tender  regard  and  solicitude  which  on  all  occasions  he 
manifested  for  the  rights  of  the  Indians,  and  the  duties  of  the 
settlers  towards  them.  They  are  exhibited  in  his  original  plan  of 
concessions,  as  well  as  in  various  other  public  documents,  and 
were  exemplified  in  his  subsequent  conduct.^  In  August,  1682,  in 
order  to  secure  his  title  against  adverse  claims,  he  procured  a  patent 

1  1  Proud,  Penn.  192 ;  2  Proud,  Penn.  App.  1 ;  2  Doug.  Summ.  300,  301. 

2  1  Chalm.  Annals,  638,  642  ;  Marsh.  Colon,  ch.  6,  p.  182,  183. 
8  1  Proud,  Penn.  197,  198 ;  2  Proud,  Penn.  App,  7. 

*  1  Proud,  Penn.  200 ;  2  Proud,  Penn.  App.  19. 

fi  2  Proud,  Penn.  App.  15,  20;  1  Chalm.  Annals,  641,  642. 

«  1  Chalm.  Annals,  644;  1  Proud,  Penn.  194,  195,  212,  429 ;  2  Proud,  App.  4. 


86  HISTORY  OF  THE   COLONIES.  [BOOK  I. 

from  the  Duke  of  York,  releasing  all  his  title  derived  under  any  of 
his  patents  from  the  crown. ^ 

§  124.  It  was  soon  found  that  the  original  frame  of  government, 
drawn  up  before  any  settlements  were  made,  was  ill  adapted  to  the 
state  of  things  in  an  infant  colony.  Accordingly  it  was  laid  aside, 
and  a  new  frame  of  government  was,  with  the  consent  of  the  gen- 
eral assembly,  established  in  1683.^  In  1692,  Penn  was  deprived 
of  the  government  of  Pennsylvania  by  William  and  Mary ;  but  it 
was  again  restored  to  him  in  the  succeeding  year.^  A  third  frame 
of  government  was  established  in  1696.*  This  again  was  surren- 
dered, and  a  new  final  charter  of  government  was,  in  October, 
1701,  with  the  consent  of  the  general  assembly,  established,  under 
which  the  province  continued  to  be  governed  down  to  the  period 
of  the  American  Revolution.  It  provided  for  full  liberty  of  con- 
science and  worship ;  and  for  the  right  of  all  persons  professing  to 
believe  in  Jesus  Christ,  to  serve  the  government  in  any  capacity.^ 
An  annual  assembly  was  to  be  chosen  of  delegates  from  each 
county,  and  to  have  the  usual  legislative  authority  of  other  colonial 
assemblies,  and  also  power  to  nominate  certain  persons  for  office 
to  the  governor.  The  laws  were  to  be  subject  to  the  approbation 
of  the  governor,  who  had  a  council  of  state  to  assist  him  in  the  gov- 
ernment.^ Provision  was  made  in  the  same  charter,  that  if  the  rep- 
resentatives of  the  province  and  territories  (meaning  by  territories 
the  three  counties  of  Delaware)  should  not  agree  to  join  together 
in  legislation,  they  should  be  represented  in  distinct  assemblies.^ 

§  125.  In  the  legislation  of  Pennsylvania,  early  provision  was 
made  (in  1683)  for  the  descent  and  distribution  of  intestate  estates, 
by  which  they  were  to  be  divided  among  all  the  children,  the  eldest 
son  having  a  double  share  ;  and  this  provision  was  never  afterwards 
departed  from.^  Notwithstanding  the  liberty  of  conscience  recog- 
nized in  the  charters,  the  legislature  seems  to  have  felt  itself  at 
liberty  to  narrow  down  its  protection  to  persons  who  believed  in 
the  Trinity,  and  in  the  divine  inspiration  of  the  Scriptures.^ 

1  1  Proud,  Penn.  200. 

2  1  Proud,  Penn.  239  ;  2  Proud,  Penn.  App.  21  ;  2  Doug.  Summ.  302. 
8  1  Proud,  Penn.  377,  403. 

*  1  Proud,  Penn.  415 ;  2  Proud,  Penn.  App.  30  ;  Marshall,  Colon,  ch.  6,  p.  183. 

6  1  Proud,  Penn.  443  to  450 ;  2  Doug.  Summ.  303. 

6  1  Proud,  Penn.  450. 

■^  1  Proud,  Penn.  454,  455  ;  1  Holmes's  Annals,  485. 

8  Laws  of  Penn.,  ed.  of  Franklin,  1742,  App.  5;  Id.  p.  60 ;  1  Chalm.  Annals,  649. 

»  Laws  of  Penn.,  ed.  of  Franklin,  1742,  p.  4  [1705]. 


CH.  Xin.]  DELAWARE.  87 


CHAPTER   XIII 


DELAWARE. 


§  126.  After  Penn  had  become  proprietary  of  Pennsylvania, 
he  purchased  of  the  Duke  of  York,  in  1682,  all  his  right  and  inter- 
est in  the  territory,  afterwards  called  the  Three  Lower  Counties  of 
Delaware,  extending  from  the  south  boundary  of  the  province, 
and  situated  on  the  western  side  of  the  river  and  bay  of  Dela- 
ware to  Cape  Henlopen,  beyond  or  south  of  Lewistown ;  and  the 
three  counties  took  the  names  of  New  Castle,  Kent,  and  Sus- 
sex.^ At  this  time  they  were  inhabited  principally  by  Dutch 
and  Swedes,  and  seem  to  have  constituted  an  appendage  to  the 
government  of  New  York.^  The  first  settlement  by  the  Swedes 
seems  to  have  been  earlier  than  1638 ;  ^  and  no  permanent 
settlements  were  attempted  by  the  Dutch  until  a  later  period 
(1651).* 

§  127.  In  the  same  year,  with  the  consent  of  the  people,  an  act 
of  union  with  the  province  of  Pennsylvania  was  passed,  and  an 
act  of  settlement  of  the  frame  of  government  in  a  general  assem- 
bly, composed  of  deputies  from  the  counties  of  Delaware  and 
Pennsylvania.^  By  this  act  the  three  counties  were,  under  the 
name  of  the  territories,  annexed  to  the  province,  and  were  to  be 
represented  in  the  general  assembly,  governed  by  the  same  laws, 
and  to  enjoy  the  same  privileges  as  the  inhabitants  of  Pennsyl- 
vania.^ Difficulties  soon  afterwards  arose  between  the  deputies 
of  the  province  and  those  of  the  territories ;  and  after  various 
subordinate  arrangements,  a  final  separation  took  place  between 

1  1  Proud,  Penn.  201,  202  ;  1  Chalm.  Annals,  643;  2  Doug.  Summ.  297,  &c. 

2  1  Chalmers's  Annals,  631,  632,  633,  634,  643;  1  Holmes's  Annals,  295,  404; 
1  Pitk.  Hist.  24,  26,  27  ;  2  Doug.  Summ.  221.  See  1  Chalm.  Annals,  571,  572,  630, 
631. 

*  Chalm.  Annals,  631. 

*  Id.  632,  633,  634. 

6  1  Proud,  Penn.  206  ;  1  Holmes's  Annals,  404  ;  1  Chalm.  Annals,  645,  646. 
«  1  Chalm.  Annals,  646 ;  1  Dall.  Penn.  Laws,  App.  24,  26 ;  2  Colden's  Five  Na- 
tions, App. 


88  HISTORY   OF  THE   COLONIES.  [bOOK  I. 

them,  with  the  consent  of  the  proprietary,  in  1703.  From  that 
period  down  to  the  American  Revolution,  the  territories  were  gov- 
erned by  a  separate  legislature  of  their  own,  pursuant  to  the 
liberty  reserved  to  them  by  a  clause  in  the  original  charter  or 
frame  of  government.^ 

1  1  Proud,  Penn.  358,  454 ;  1  Holmes's  Annals,  404,  note ;  3  Doug.  Sumra,  297, 
298. 


CH.  XIV.]  NORTH  AND  SOUTH   CAROLINA.  89 


CHAPTER    XIV. 

NORTH  AND  SOUTH  CAROLINA. 

§  128.  We  next  come  to  the  consideration  of  the  history  of  the 
political  organization  of  the  Carolinas.  That  level  region,  which 
stretches  from  the  36th  degree  of  north  latitude  to  Cape  Florida, 
afforded  an  ample  theatre  for  the  early  struggles  of  the  three  great 
European  powers,  Spain,  France,  and  England,  to  maintain  or 
acquire  an  exclusive  sovereignty.  Various  settlements  were  made 
under  the  auspices  of  each  of  the  rival  powers,  and  a  common 
fate  seemed  for  a  while  to  attend  them  all.^  In  Marcli,  1662 
[April,  1663],  Charles  the  Second  made  a  grant  to  Lord  Claren- 
don and  others  of  the  territory  lying  on  the  Atlantic  Ocean,  and 
extending  from  the  north  end  of  the  island  called  Hope  Island,  in 
the  South  Virginian  Seas,  and  within  36  degrees  of  north  latitude, 
and  to  the  west  as  far  as  the  South  Seas,  and  so  respectively  as 
far  as  the  river  Mathias  upon  the  coast  of  Florida,  and  within  31 
degrees  of  north  latitude,  and  so  west  in  a  direct  line  to  the  South 
Seas,  and  erected  it  into  a  province,  by  the  name  of  Carolina,  to 
be  holden  as  of  the  manor  of  East  Greenwich  in  Kent,  in  free  and 
common  socage,  and  not  in  capite,  or  by  knight  service,  subject 
immediately  to  the  crown,  as  a  dependency,  forever.^ 

§  129.  The  grantees  were  created  absolute  lords  proprietaries, 
saving  the  faith,  allegiance,  and  supreme  dominion  of  the  crown, 
and  invested  with  as  ample  rights  and  jurisdictions  as  the  Bishop 
of  Durham  possessed  in  his  palatine  diocese.  The  charter  seems 
to  have  been  copied  from  that  of  Maryland,  and  resembles  it  in 
many  of  its  provisions.  It  authorized  the  proprietaries  to  enact 
laws  with  the  assent  of  the  freemen  of  the  colony,  or  their  dele- 
gates, to  erect  courts  of  judicature,  to  appoint  civil  officers,  to 
grant  titles  of  honor,  to  erect  forts,  to  make  war,  and  in  cases 
of  necessity  to  exercise  martial  law,  to  build  harbors,  to  make 
ports,  to  erect  manors,  and  to  enjoy  customs  and  subsidies  im- 

1  1  Chalmers's  Annals,  513,  514,  515. 

2  1  Chalm.  Annals,  519  ;  1  Holmes's  Annals,  327,  328  ;  Marsh.  Colon,  ch.  5,  p.  152* 
1  Williamson's  North  Carol.  87,  230  ;  Carolina  Charters,  London,  4to. 


90  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

posed  with  the  consent  of  the  freemen.^  And  it  further  author- 
ized the  proprietaries  to  grant  indulgences  and  dispensations  in 
religious  affairs,  so  that  persons  might  not  be  molested  for  differ- 
ences in  speculative  opinion  with  respect  to  religion,  avowedly 
for  the  purpose  of  tolerating  non-conformity  to  the  Church  of  Eng- 
land.2  It  further  required  that  all  laws  should  "  be  consonant  to 
reason,  and  as  near  as  may  be  conveniently,  agreeable  to  the  laws 
and  customs  of  this  our  kingdom  of  England."  ^  j^^^^  jt  declared 
that  the  inhabitants  and  their  children,  born  in  the  province, 
should  be  denizens  of  England,  and  entitled  to  all  the  privileges 
and  immunities  of  Britrsh-born  subjects. 

§  130.  The  proprietaries  immediately  took  measures  for  the 
settlement  of  the  province,  and  at  the  desire  of  the  New  England 
settlers  within  it  (whose  disposition  to  emigration  is  with  Chalmers 
a  constant  theme  of  reproach)  published  proposals,  forming  a 
basis  of  government.*  It  was  declared  that  there  should  be  a 
governor  chosen  by  the  proprietaries  from  thirteen  persons  named 
by  the  colonists,  and  a  general  assembly,  composed  of  the  gov- 
ernor, council,  and  representatives  of  the  people,  who  should  have 
authority  to  make  laws  not  contrary  to  those  of  England,  which 
should  remain  in  force  until  disapproved  of  by  the  proprietaries.^ 
Perfect  freedom  of  religion  was  also  promised,  and  a  hundred 
acres  of  land  offered  at  a  half-penny  an  acre,  to  every  settler 
"within  five  years. 

§  131.  In  1665,  the  proprietaries  obtained  from  Charles  the 
Second  a  second  charter,  with  an  enlargement  of  boundaries.  It 
recited  the  grant  of  the  former  charter,  and  declared  the  limits  to 
extend  north  and  eastward  as  far  as  the  north  end  of  Currituck 
River  or  Inlet,  upon  a  straight  westerly  line  to  Wyonoak  Creek, 
which  lies  within  or  about  36  degrees  30  minutes  of  north  lati- 
tude, and  so  west  in  a  direct  line  as  far  as  the  South  Seas,  and 
south  and  westward  as  far  as  the  degrees  of  29  inclusive  of  north- 
ern latitude,  and  so  west  in  a  direct  line  as  far  as  the  South  Seas.^ 

1  1  Holmes's  Annals,  327,  328.  This  charter,  and  the  second  charter,  and  the  fun- 
damental constitutions  made  by  the  proprietaries,  is  to  be  found  in  a  small  quarto 
printed  in  London  without  date,  which  is  in  Harvard  College  Library. 

2  1  Holmes's  Annals,  328 ;  1  Hewatt's  South  Car.  42  to  47. 

*  Carolina  Charter,  4to,  London. 

*  1  Chalm.  Annals,  515. 

6  1  Chalm.  Annals,  518,  5.53  ;  Marsh.  Colon,  ch.  5,  p.  152. 

6  1  Chalm.  Annals,  521  ;  1  Williams's  N.  Car.  230,  231  ;  1  Holmes's  Annals,  340; 
Carolina  Charters,  4to,  London. 


CH.  XIV.]  NORTH  AND  SOUTH  CAROLINA.  81 

It  then  proceeded  to  constitute  the  proprietaries  absolute  owners 
and  lords  of  the  province,  saving  the  faith,  allegiance,  and  sov- 
ereign dominion  of  the  crown,  to  hold  the  same  as  of  the  manor 
of  East  Greenwich  in  Kent,  in  free  and  common  socage,  and  not 
in  eapite,  or  by  knight  service,  and  to  possess  in  the  same  all  the 
royalties,  jurisdictions,  and  privileges  of  the  Bishop  of  Durham  in 
his  diocese.  It  also  gave  them  power  to  make  laws,  with  the 
assent  of  the  freemen  of  the  province,  or  their  delegates,  provided 
such  laws  were  consonant  with  reason,  and  as  near  as  conveniently 
may  be,  agreeable  to  the  laws  and  customs  of  the  realm  of  Eng- 
land.i  It  also  provided  that  the  inhabitants  and  their  children 
should  be  denizens  and  lieges  of  the  kingdom  of  England,  and 
reputed  and  held  as  the  liege  people  born  within  the  kingdom,  and 
might  inherit  and  purchase  lands,  and  sell  and  bequeath  the  same, 
and  should  possess  all  the  privileges  and  immunities  of  natural- 
born  subjects  within  the  realm.  Many  other  provisions  were 
added,  in  substance  like  those  in  the  former  charter.^  Several 
detached  settlements  were  made  in  Carolina,  which  were  at  first 
placed  under  distinct  temporary  governments  ;  one  was  in  Albe- 
marle, another  to  the  south  of  Cape  Fear.^  Thus  various  inde- 
pendent and  separate  colonies  were  established,  each  of  which  had 
its  own  assembly,  its  own  customs,  and  its  own  laws  ;  a  policy 
which  the  proprietaries  had  afterwards  occasion  to  regret,  from 
its  tendency  to  enfeeble  and  distract  the  province.* 

§  132.  In  the  year  1669,  the  proprietaries,  dissatisfied  with  the 
systems  already  established  within  the  province,  signed  a  funda- 
mental constitution  for  the  government  thereof,  the  object  of  which 
is  declared  to  be,  "  that  we  m*ay  establish  a  government  agreeable 
to  the  monarchy,  of  which  Carolina  is  a  part,  that  we  may  avoid 
making  too  numerous  a  democracy."^  This  constitution  was 
drawn  up  by  the  celebrated  John  Locke,  and  his  memory  has 
often  been  reproached  with  the  illiberal  character  of  some  of  the 
articles,  the  oppressive  servitude  of  others,  and  the  general  disre- 

'    1  1  Williams's  N.  Car.  230,  237. 

2  I  Holmes's  Annals,  340;  1  Chalm.  Annals,  521,  522  ;  1  Williams's  N.  Car.  230  to 
254  ;  Iredell's  Laws  of  N.  Car.  Charter,  p.  1  to  7. 

8  1  Chalm.  Annals,  519,  520,  524,  525  ;  1  Williams's  N.  Car.  88,  91,  92,  93,  96,  97, 
103,  114. 

*  1  Chalm.  Annals,  521. 

6  1  Chalm.  Annals,  526,  527 ;  1  Holmes's  Annals,  350,  351,  and  note ;  Carolina 
Charters,  4to,  London,  p.  33. 


92  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

gard  of  some  of  those  maxims  of  religious  and  political  liberty 
for  which  he  has  in  his  treatises  of  government  and  other  writings 
contended  with  so  much  ability  and  success.  Probably  there  were 
many  circumstances  attending  this  transaction  which  are  now 
unknown,  and  which  might  well  have  moderated  the  severity  of 
the  reproach,  and  furnished,  if  not  a  justification,  at  least  some 
apology  for  this  extraordinary  instance  of  unwise  and  visionary 
legislation. 

§  133.  It  provided  that  the  oldest  proprietary  should  be  the 
palatine,  and  the  next  oldest  should  succeed  him.  Each  of  the 
proprietaries  was  to  hold  a  high  office.  The  rules  of  precedency 
were  most  exactly  established.  Two  orders  of  hereditary  nobility 
were  instituted,  with  suitable  estates,  which  were  to  descend  with 
the  dignity.  The  provincial  legislature,  dignified  with  the  name 
of  parliament,  was  to  be  biennial,  and  to  consist  of  the  proprieta- 
ries or  their  deputies,  of  the  nobility,  and  of  representatives  of 
the  freeholders  cliosen  in  districts.  They  were  all  to  meet  in  one 
apartment  (like  the  ancient  Scottish  Parliament),  and  enjoy  an 
equal  vote.  No  business,  however,  was  to  be  proposed,  until  it 
had  been  debated  in  the  grand  council  (which  was  to  consist  of 
the  proprietaries  and  forty-two  counsellors),  whose  duty  it  was  to 
prepare  bills.  No  act  was  of  force  longer  than  until  the  next 
biennial  meeting  of  the  parliament,  unless  ratified  by  the  palatine 
and  a  quorum  of  the  proprietaries.  All  the  laws  were  to  become 
void  at  the  end  of  a  century,  without  any  formal  repeal.  The 
Church  of  England  (which  was  declared  to  be  the  only  true  and 
orthodox  religion)  was  alone  to  be  allowed  a  public  maintenance 
by  parliament.  But  every  congregation  might  tax  its  own  mem- 
bers for  the  support  of  its  own  minister.  Every  man  of  seventeen 
years  of  age  was  to  declare  himself  of  some  church  or  religious 
profession,  and  to  be  recorded  as  such ;  otherwise  he  was  not  to 
have  any  benefit  of  the  laws.  And  no  man  was  to  be  permitted 
to  be  a  freeman  of  Carolina,  or  have  any  estate  or  habitation,  who 
did  not  acknowledge  a  God,  and  that  God  is  to  be  publicly  wor- 
shipped. In  other  respects  there  was  a  guaranty  of  religious 
freedom.^  There  was  to  be  a  public  registry  of  all  deeds  and  con- 
veyances of  lands,  and  of  marriages  and  births.     Every  freeman 

I  1  Hewatt's  South  Car.  42  to  47,  321,  &c. ;  Carolina  Charters,  4to,  London,  p.  33, 
&c. ;  I  Chalm.  Annals,  526 ;  1  Holmes's  Annals,  350,  351  ;  1  Williams's  N.  Car.  104 
to  111 ;  Marsh.  Colon,  ch.  5,  p.  155  ;  1  Ramsay's  South  Car.  31,  32. 


CH.  XIV.]  NORTH  AND  SOUTH  CAROLINA.  98 

was  to  have  "  absolute  power  and  authority  over  his  negro  slaves, 
of  what  opinion  or  religion  soever."  No  civil  or  criminal  cause 
was  to  be  tried  but  by  a  jury  of  the  peers  of  the  party ;  but  the 
verdict  of  a  majority  was  binditig.  With  a  view  to  prevent  un- 
necessary litigation,  it  was  (with  a  simplicity,  which  at  this  time 
may  excite  a  smile)  provided  that  "  it  shall  be  a  base  and  vile 
thing  to  plead  for  money  or  reward "  ;  and  that  "  since  multi- 
plicity of  comments,  as  well  as  of  laws,  have  great  inconveniences, 
and  serve  only  to  obscure  and  perplex,  all  manner  of  comments 
and  expositions  on  any  part  of  these  fundamental  constitutions, 
or  on  any  part  of  the  common  or  statute  law  of  Carolina,  are 
absolutely  prohibited."  ^ 

§  134.  Such  was  the  substance  of  this  celebrated  constitution. 
It  is  easy  to  perceive  that  it  was  ill  adapted  to  the  feelings,  the 
wants,  and  the  opinions  of  the  colonists.  The  introduction  of  it, 
therefore,  was  resisted  by  the  people,  as  much  as  it  could  be  ;  and 
indeed,  in  some  respects  it  was  found  impracticable. ^  Public  dis- 
satisfaction daily  increased,  and  after  a  few  years'  experience  of 
its  ill  arrangements,  and  its  mischievous  tendency,  the  proprieta- 
ries, upon  the  application  of  the  people  (in  1693),  abrogated  the 
constitution,  and  restored  the  ancient  form  of  government.  Thus 
perished  the  labors  of  Mr.  Locke ;  and  thus  perished  a  system, 
under  the  administration  of  which,  it  has  been  remarked,  the 
Carolinians  had  not  known  one  day  of  real  enjoyment,  and  that 
introduced  evils  and  disorders,  which  ended  only  with  the  disso- 
lution of  the  proprietary  government.^  Perhaps  in  the  annals  of 
the  world  there  is  not  to  be  found  a  more  wholesome  lesson  of  the 
utter  folly  of  all  efforts  to  establish  forms  of  government  upon 
mere  theory,  and  of  the  dangers  of  legislation  without  consulting 
the  habits,  manners,  feelings,  and  opinions  of  the  people  upon 
which  they  are  to  operate. 

§  135.  After  James  the  Second  came  to  the  throne,  the  same 
general  course  was  adopted  of  filing  a  quo  warranto  against  the 
proprietaries,  as  had  been  successful  in  respect  to  other  colonies. 
The  proprietaries,  with  a  view  to  elude  the  storm,  prudently  offered 

1  Carolina  Charters  4to,  p.  4.5,  §  70,  p.  47,  §  80;  1  Hewatt's  South  Car.  321,  &c. 

2  1  Ramsay's  South  Car.  39,  43,  88  ;  I  Hewatt's  South  Car  45  ;  1  Chalmers's  An- 
nals, 527,  528,  529,  530,  532,  550;  Marsh.  Colon,  ch.  5,  156, 157, 159  ;  1  Williams's  N. 
Car.  122,  143. 

^  1  Chalmers's  Annals,  552. 


94  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

to  surrender  their  charter,  and  thereby  gained  time.^  Before  any- 
thing definitive  took  place,  the  Revolution  of  1688  occurred,  'which 
put  an  end  to  the  hostile  proceedings.  In  April,  1698,  the  pro- 
prietaries made  another  system  of  fundamental  constitutions, 
which  embraced  many  of  those  propounded  in  the  first,  and  in- 
deed, was  manifestly  a  mere  amendment  of  them. 

§  136.  These  constitutions  (for  experience  does  not  seem  to 
have  imparted  more  wisdom  to  the  proprietaries  on  this  subject) 
contained  the  most  objectionable  features  of  the  system  of  govern- 
ment, and  hereditary  nobility  of  the  former  constitutions,  and 
shared  a  common  fate.  They  were  never  generally  assented  to 
by  the  people  of  the  colony,  or  by  their  representatives,  as  a  body 
of  fundamental  laws.  Hewatt  says,'^  that  none  of  these  systems 
ever  obtained  "  the  force  of  fundamental  and  unalterable  laws  in 
the  colony.  What  regulations  the  people  found  applicable,  they 
adopted  at  the  request  of  their  governors ;  but  observed  these  on 
account  of  their  own  propriety  and  necessity,  rather  than  as  a 
system  of  laws  imposed  on  them  by  British  legislators."  ^ 

§  137.  There  was  at  this  period  a  space  of  three  hundred  miles 
between  the  southern  and  northern  settlements  of  Carolina  ;  *  and 
though  the  whole  province  was  owned  by  the  same  proprietaries, 
the  legislation  of  the  two  great  settlements  had  been  hitherto  con- 
ducted by  separate  and  distinct  assemblies,  sometimes  under  the 
same  governor  and  sometimes  under  different  governors.  The 
legislatures  continued  to  remain  distinct  down  to  the  period  when 
a  final  surrender  of  the  proprietary  charter  was  made  to  the  crown 
in  1729.^  The  respective  territories  were  designated  by  the  name 
of  North  Carolina  and  South  Carolina,  and  the  laws  of  each  ob- 
tained a  like  appellation.  Cape  Fear  seems  to  have  been  com- 
monly deemed  in  the  commissions  of  the  governor  the  boundary 
between  the  two  colonies.^ 

§  138.  By  the  surrender  of  the  charter,  the  whole  government 
of  the  territory  was  vested  in  the  crown  ;  (it  had  been  in  fact  ex- 

1  1  Chalmers's  Annals,  549  ;  1  Holmes's  Annals,  416. 

2  1  Hewatt's  South  Carol.  45. 

8  Dr.  Ramsay  treats  these  successive  constitutions  as  of  no  authority  whatsoever  in 
the  province,  as  a  law  or  rule  of  government.  But  in  a  legal  point  of  view  the  propo- 
sition is  open  to  much  doubt.    2  Ramsay's  South  Carol.  121  to  124. 

*  1  Williams's  N.  Car.  155. 

6  Marsh  Colon,  ch.  9,  p.  246,  247  ;  1  Hewatt's  South  Carol.  212,  318. 

»  1  Williams's  N.  Car.  161,  162;  1  Ramsay's  South  Carol.  56,  &c.  88,  95;  1  Hew- 
att's South  Carol.  212,  318  ;  1  Holmes's  Annals,  523,  525  ;  Marsh.  Colon,  ch.  9,  p.  246. 


CH.  XIV.]  NORTH  AND  SOUTH  CAROLINA.  96 

ercised  by  the  crown  ever  since  the  overthrow  of  the  proprietary 
government  in  1720  ;)  and  henceforward  it  became  a  royal  prov- 
ince, and  was  governed  by  commission  under  a  form  of  gov- 
ernment substantially  like  that  established  in  the  other  royal 
provinces.^  This  change  of  government  was  very  acceptable  to 
the  people,  and  gave  a  new  impulse  to  their  industry  and  enter- 
prise. At  a  later  period  [1732],  for  the  convenience  of  the  inhabi- 
tants, the  province  was  divided ;  and  the  divisions  were  distin- 
guished by  the  names  of  North  Carolina  and  South  Carolina.^ 

§  139.  The  form  of  government  conferred  on  Carolina  when  it 
became  a  royal  province  was  in  substance  this :  It  consisted  of  a 
governor  and  council  appointed  by  the  crown,  and  an  assembly 
chosen  by  the  people,  and  these  three  branches  constituted  the 
legislature.  The  governor  convened,  prorogued,  and  dissolved  the 
legislature,  and  had  a  negative  upon  the  laws,  and  exercised  the 
executive  authority .^  He  possessed  also  the  powers  of  the  court 
of  chancery,  of  the  admiralty,  of  supreme  ordinary,  and  of  ap- 
pointing magistrates  and  militia  officers.  All  laws  were  subject  to 
the  royal  approbation  or  dissent ;  but  were  in  the  mean  time  in  full 
force. 

§  140.  On  examining  the  statutes  of  South  Carolina,  a  close 
adherence  to  the  general  policy  of  the  English  laws  is  apparent. 
As  early  as  the  year  1712,  a  large  body  of  the  English  statutes 
was,  by  express  legislation,  adopted  as  part  of  its  own  code ;  and 
all  English  statutes  respecting  allegiance,  all  the  test  and  suprem- 
acy acts,  and  all  acts  declaring  the  rights  and  liberties  of  the  sub- 
jects, or  securing  the  same,  were  also  declared  to  be  in  full  force 
in  the  province.  All  and  every  part  of  the  common  law,  not 
altered  by  these  acts  or  inconsistent  with  the  constitutions,  cus- 
toms, and  laws  of  the  province,  was  also  adopted  as  part  of  its 
jurisprudence.  An  exception  was  made  of  ancient  abolished  ten- 
ures, and  of  ecclesiastical  matters  inconsistent  with  the  then 
church  establishment  in  the  province.  There  was  also  a  saving 
of  the  liberty  of  conscience,  which  was  allowed  to  be  enjoyed  by 
the  charter  from  the  crown  and  the  laws  of  the  province.*  This 
liberty  of  conscience  did  not  amount  to  a  right  to  deny  the  Trinity.^ 

1  Marsh.  Colon,  ch.  9,  p.  247. 

2  Marsh.  Colon,  ch.  9,  p  237 ;  1  Holmes's  Annals,  544. 

8  2  Hewatt's  South  Car.  ch.  7,  p.  1,  et  seq. ;  1  Ramsay's  South  Car.  ch.  4,  p.  95. 
*  Grimke's  South  Carolina  Laws  (1712),  p.  81,  98,  99,  100. 
6  Id.  Act  of  1703,  p.  4. 


96  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

The  Church  of  England  had  been  previously  established  in  the 
province  [in  1704]  and  all  members  of  the  assembly  were  required 
to  be  of  that  persuasion.^  Fortunately  Queen  Anne  annulled  these 
obnoxious  laws ;  and  though  the  Church  of  England  was  estab- 
lished, dissenters  obtained  a  toleration,  and  the  law  respecting  the 
religious  qualification  of  assemblymen  was  shortly  afterwards 
repealed. 

§  141.  The  laws  of  descents  of  intestate  real  estates,  of  wills, 
and  of  uses,  existing  in  England,  seem  to  have  acquired  a  perma- 
nent foundation  in  the  colony,  and  remained  undisturbed,  until 
after  the  period  of  the  American  Revolution .^  As  in  the  other 
colonies,  the  registration  of  conveyances  of  lands  was  early  pro- 
vided for,  in  order  to  suppress  fraudulent  grants. 

§  142.  In  respect  to  North  Carolina,  there  was  an  early  declara- 
tion of  the  legislature  [1715]  conformably  to  the  charter,  that  the 
common  law  was  and  should  be  in  force  in  the  colony.  All  stat- 
ute laws  for  maintaining  the  royal  prerogative  and  succession  to 
the  crown,  and  all  such  laws  made  for  the  establishment  of  the 
church,  and  laws  made  for  the  indulgence  to  Protestant  dissent- 
ers ;  and  all  laws  providing  for  the  privileges  of  the  people,  and 
security  of  trade ;  and  all  laws  for  the  limitation  of  actions  and 
for  preventing  vexatious  suits,  and  for  preventing  immorality  and 
fraud,  and  confirming  inheritances  and  titles  of  land,  were  de- 
clared to  be  in  force  in  the  province.^  The  policy  thus  avowed 
was  not  departed  from  down  to  the  period  of  the  American  Revo- 
lution ;  and  the  laws  of  descents  and  the  registration  of  convey- 
ances in  both  the  Carolinas  were  a  silent  result  of  their  common 
origin  and  government. 

A  1  Holmes's  Annals,  489,  490,  491  ;  I  Hewatt's  South  Carol.  166  to  177. 

2  2  Ramsay's  South  Car.  130.     The  descent  of  estates  was  not  altered  until  1791. 

8  Iredell's  North  Car.  Laws,  1715,  p.  18,  19. 


CH.  XV.]  GEORGIA.  97 


CHAPTER  XY. 

GEORGIA. 

§  143.  In  the  same  year  in  which  Carolina  was  divided  [1732], 
a  project  was  formed  for  the  settlement  of  a  colony  upon  the  unoc- 
cupied territory  between  the  rivers  Savannah  and  Altamalia.^ 
The  object  of  the  projectors  was  to  strengthen  the  province  of 
Carolina,  to  provide  a  maintenance  for  the  suffering  poor  of  the 
mother  country,  and  to  open  an  asylum  for  the  persecuted  Protes- 
tants in  Europe  ;  and  in  common  with  all  the  other  colonies  to 
attempt  the  conversion  and  civilization  of  the  natives.^  Upon  ap- 
plication, George  the  Second  granted  a  charter  to  the  company, 
(consisting  of  Lord  Percival  and  twenty  others,  among  whom  was 
the  celebrated  Oglethorpe,)  and  incorporated  them  by  the  name 
of  the  Trustees  for  establishing  the  Colony  of  Georgia  in  America.^ 
The  charter  conferred  the  usual  powers  of  corporations  in  Eng- 
land, and  authorized  the  trustees  to  hold  any  territories,  jurisdic- 
tions, etc.,  in  America  for  the  better  settling  of  a  colony  there. 
The  affairs  of  the  corporation  were  to  be  managed  by  the  corpora- 
tion, and  by  a  common  council  of  fifteen  persons,  in  the  first  place 
nominated  by  the  crown,  and  afterwards,  as  vacancies  occurred, 
filled  by  the  corporation.  The  number  of  common-councilmen 
might,  with  the  increase  of  the  corporation,  be  increased  to 
twenty-four.  The  charter  further  granted  to  the  corporation 
seven  undivided  parts  of  all  the  territories  lying  in  that  part 
of  South  Carolina  which  lies  from  the  northern  stream  of  a  river, 
there  called  the  Savannah,  all  along  the  sea-coast  to  the  southward 
unto  the  southernmost  stream  of  a  certain  other  great  river,  called 
the  Altamaha,  and  westward  from  the  heads  of  the  said  rivers 
respectively  in  direct  lines  to  the  South  Seas,  to  be  held  as  of  the 
manor  of  Hampton  Court,  in  Middlesex,  in  free  and  common 
socage,  and  not  in  capite.  It  then  erected  all  the  territory  into  an 
independent  province  by  the  name  of  Georgia.     It  authorized  the 

1  1  Holmes's  Annals,  552 ;  Marsh.  Colonies,  eh.  9,  p.  247 ;  2  Hewatt's  South  Car. 
15,  16;  Stokes's  Hist.  Colonies,  113. 
'^  1  Holmes's  Annals,  552 ;  2  Hewatt's  South  Car.  15,  16,  17. 
*  Charters  of  N.  A.  Provinces,  4to,  London,  1766. 
VOL.  I.  7 


98  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

trustees  for  the  term  of  twenty-oue  years  to  make  laws  for  the 
province  "  not  repugnant  to  the  laws  and  statutes  of  England,  sub- 
ject to  the  approbation  or  disallowance  of  the  crown,  and  after 
such  approbation  to  be  valid.  The  affairs  of  the  corporation  were 
ordinarily  to  be  managed  by  the  common  council.  It  was  further 
declared  that  all  persons  born  in  the  province  should  enjoy  all  the 
privileges  and  immunities  of  natural-born  subjects  in  Great  Britain. 
Liberty  of  conscience  was  allowed  to  all  inhabitants  in  the  worship 
of  God,  and  a  free  exercise  of  religion  to  all  persons,  except  Pa- 
pists. The  corporation  were  also  authorized,  for  the  term  of  twenty- 
one  years,  to  erect  courts  of  judicature  for  all  civil  and  criminal 
causes,  and  to  appoint  a  governor,  judges,  and  other  magistrates. 
The  registration  of  all  conveyances  of  the  corporation  was  also 
provided  for.  The  governor  was  to  take  an  oath  to  observe  all  the 
acts  of  Parliament  relating  to  trade  and  navigation,  and  to  obey 
all  royal  instructions  pursuant  thereto.  The  governor  of  South 
Carolina  was  to  have  the  chief  command  of  the  militia  of  the 
province  ;  and  goods  were  to  be  imported  and  exported  without 
touching  at  any  port  in  South  Carolina.  At  the  end  of  the  twenty- 
one  years  the  crown  was  to  establish  such  form  of  government  in 
the  province,  and  such  method  of  making  laws  therefor,  as  in  its 
pleasure  should  be  deemed  meet ;  and  all  officers  should  be  then 
appointed  by  the  crown. 

§  144.  Such  is  the  substance  of  the  charter,  which  was  obvi- 
ously intended  for  a  temporary  duration  only  ;  and  the  first  meas- 
ures adopted  by  the  trustees,  granting  lands  in  tail  male,  to  be 
held  by  a  sort  of  military  service,  and  introducing  other  restric- 
tions, were  not  adapted  to  aid  the  original  design,  or  foster  the 
growth  of  the  colony.^  It  continued  to  languish,  until  at  length 
the  trustees,  w^earied  with  their  own  labors,  and  the  complaints  of 
the  people,  in  June,  1751,  surrendered  the  charter  to  the  crown.^ 
Henceforward  it  was  governed  as  a  royal  province,  enjoying  the 
same  liberties  and  immunities  as  other  royal  provinces ;  and  in 
process  of  time  it  began  to  flourish,  and  iat  the  period  of  the 
American  Revolution  it  had  attained  considerable  importance 
among  the  colonies. ^ 

1  Marshall's  Colon,  ch.  9,  p.  248,  249,  250 ;  2  Holmes's  Annals,  4  -  45 ;  2  Hewatt's 
South  Car.  41,  42,  43. 

2  2  Holmes's  Annals,  45. 

3  Stokes's  Hist,  of  Colonies,  115,  119 ;  2  Hewatt's  South  Car.  145  ;  2  Holmes's  An- 
nals, 45,  117. 


CH.  XV.]  GEORGIA.  94 

§  145.  In  respect  to  its  ante-revolutionary  jurisprudence,  a  few 
remarks  may  suffice.  The  British  common  and  statute  law  lay  at 
the  foundation. 1  The  same  general  system  prevailed  as  in  the 
Carolinas,  from  which  it  sprung.  Intestate  estates  descended 
according  to  the  course  of  the  English  law.  The  registration  of 
conveyances  was  provided  for,  at  once  to  secure  titles  and  to  sup- 
press frauds  ;  and  the  general  interests  of  religion,  the  rights  of 
representation,  of  personal  liberty,  and  of  public  justice,  were  pro- 
tected by  ample  colonial  regulations. 

1  Stokes's  Hist,  of  Colon.  119, 136. 


100  HISTORY  OP  THE  COLONIES.  [BOOK  I. 


CHAPTER  XVI. 

GENERAL  REVIEW  OF  THE  COLONIES. 

§  146.  "We  have  now  finished  our  survey  of  the  origin  and 
political  history  of  the  colonies,  and  here  we  may  pause  for  a  short 
time  for  the  purpose  of  some  general  reflections  upon  the  subject. 

§  147.  Plantations  or  colonies  in  distant  countries  are  either 
such  as  are  acquired  by  occupying  and  peopling  desert  and  uncul- 
tivated regions  by  emigrations  from  the  mother  country ,i  or  such 
as,  being  already  cultivated  and  organized,  are  acquired  by  con- 
quest or  cession  under  treaties.  There  is,  however,  a  difference 
between  these  two  species  of  colonies  in  respect  to  the  laws  by 
which  they  are  governed,  at  least  according  to  the  jurisprudence 
of  the  common  law.  If  an  iminhabited  country  is  discovered  and 
planted  by  British  subjects,  the  English  laws  are  said  to  be  imme- 
diately in  force  there  ;  for  the  law  is  the  birthright  of  every  sub- 
ject. So  that  wherever  they  go  they  carry  their  laws  with  them  ; 
and  the  new-found  country  is  governed  by  them.^ 

§  148.  This  proposition,  however,  though  laid  down  in  such 
general  terms  by  very  high  authority,  requires  many  limitations, 
and  is  to  be  understood  with  many  restrictions.  Such  colonists 
do  not  carry  with  them  the  whole  body  of  the  English  laws,  as 
they  then  exist ;  for  many  of  them  must,  from  the  nature  of  the 
case,  be  wholly  inapplicable  to  their  situation,  and  inconsistent 
with  their  comfort  and  prosperity.  There  is,  therefore,  this  ne- 
cessary limitation  implied,  that  they  carry  with  them  all  the  laws 
applicable  to  their  situation,  and  not  repugnant  to  the  local  and 
political  circumstances  in  which  they  are  placed. 

§  149.  Even  as  thus  stated,  the  proposition  is  full  of  vagueness 
and  perplexity ;  for  it  must  still  remain  a  question  of  intrinsic 
difficulty  to  say  what  laws  are  or  are  not  applicable  to  their  situa- 
tion ;  and  whether  they  are  bound  by  a  present  state  of  things,  or 
are  at  liberty  to  apply  the  laws  in  future  by  adoption,  as  the  growth 

1  1  Bl.  Comm.  107. 

2  2  p.  Will.  75  ;  1  Bl.  Comm.  107 ;  2  Salk.  411 ;  Com.  Dig.  Ley.  C. ;  Bex  v.  Vaughan, 
4  Burr.  R.  2500 ;  Chitty  on  Prerog.  ch.  3,  p.  29,  &c. 


CH.  XVI.]  GENERAL  REVIEW.  101 

or  interests  of  the  colony  may  dictate.^  The  English  rales  of 
inheritance,  and  of  protection  from  personal  injuries,  the  rights 
secured  by  Magna  Charta,  and  the  remedial  course  in  the  admin- 
istration of  justice,  are  examples  as  clear  perhaps  as  any  which 
can  be  stated  as  presumptively  adopted,  or  applicable.  And  yet 
in  the  infancy  of  a  colony  some  of  these  very  rights  and  privileges 
and  remedies  and  rules  may  be  in  fact  inapplicable,  or  inconven- 
ient and  impolitic. 2  It  is  not  perhaps  easy  to  settle  what  parts  of 
the  English  laws  are  or  are  not  in  force  in  any  such  colony,  until 
eitlier  by  usage  or  judicial  determination  they  have  been  recog- 
nized as  of  absolute  force. 

§  150.  In  respect  to  conquered  and  ceded  countries,  which  have 
already  laws  of  their  own,  a  different  rule  prevails.  In  such  cases 
the  crown  has  a  right  to  abrogate  the  former  laws  and  institute 
new  ones.  But  until  such  new  laws  are  promulgated,  the  old  laws 
and  customs  of  the  country  remain  in  full  force,  unless  so  far  as 
they  are  contrary  to  our  religion,  or  enact  anything  that  is  malum 
in  se  ;  for  in  all  such  cases  the  laws  of  the  conquering  or  acquiring 
country  shall  prevail.  This  qualification  of  the  rule  arises  from  the 
presumption  that  the  crown  could  never  intend  to  sanction  laws 
contrary  to  religion  or  sound  morals.^  But  although  the  king  has 
thus  the  power  to  change  the  laws  of  ceded  and  conquered  coun- 
tries, the  power  is  not  unlimited.  His  legislation  is  subordinate 
to  the  authority  of  parliament.  He  cannot  make  any  new  change 
contrary  to  fundamental  principles  ;  he  cannot  exempt  an  inhabi- 
tant from  that  particular  dominion,  as  for  instance  from  the  laws 
of  trade,  or  from  the  power  of  parliament ;  and  he  cannot  give 
him  privileges  exclusive  of  other  subjects.* 

§  151.  Mr.  Justice  Blackstone,  in  his  Commentaries,  insists 
that  the  American  colonies  are  principally  to  be  deemed  con- 
quered, or  ceded  countries.  His  language  is,  "  Our  American 
plantations  are  principally  of  this  latter  sort,  [i.  e.  ceded  or  con- 
quered countries,]  being  obtained  in  the  last  century  either  by 
right  of  conquest  and  driving  out  the  natives,  (with  what  natural 

1  1  Bl.  Comm.  107 ;  2  Merivale,  R.  143,  159. 

2  1  Bl.  Comm.  107 ;  1  Tucker's  Black,  note  E,  378,  384,  et  seq.;  4  Barr.  R.  2500; 
2  Merivale,  R.  143,  157,  158;  2  Wilson's  Law  Lect.  49  to  54. 

»  Blankard  v.  Galy,  4  Mod.  222;  s.  c  2  Salk.  411,  412  ;  2  Peere  Will.  75  ;  1  Black. 
Comm.  107  ;  Campbell  v.  Hall,  Cowp.  R.  204,  2C9,  Calvin's  case,  7  Co.  1,  17  6 ;  Com. 
Dig.  Navigation,  G.  1,  3  ;  Id.  Ley.  C. ;  4  Burr.  R.  2500 ;  2  Merivale,  R.  143,  157,  158. 

*  Campbell  v.  Hall,  Cowp.  R.  204,  209 ;  Chitty  on  Prerog.  ch.  3,  p.  29,  &c. 


102  HISTORY   OF  THE   COLONIES.  [BOOK  I. 

justice  I  shall  not  at  present  inquire,)  or  by  treaties.  And,  there- 
fore, the  common  law  of  England,  as  such,  has  no  allowance  or 
authority  there ;  they  being  no  part  of  the  mother  country,  but 
distinct,  though  dependent  dominions."  ^ 

§  152.  There  is  great  reason  to  doubt  the  accuracy  of  this  state- 
ment in  a  legal  view.  We  have  already  seen  that  the  European 
nations  by  whom  America  was  colonized  treated  the  subject  in  a 
very  different  manner.^  They  claimed  an  absolute  dominion  over 
the  whole  territories  afterwards  occupied  by  them,  not  in  virtue  of 
any  conquest  of,  or  cession  by,  the  Indian  natives,  but  as  a  right 
acquired  by  discovery .^  Some  of  them,  indeed,  obtained  a  sort 
of  confirmatory  grant  from  the  papal  authority.  But  as  between 
themselves  they  treated  the  dominion  and  title  of  territory  as 
resulting  from  priority  of  discovery ;  *  and  that  European  power 
which  had  first  discovered  the  country  and  set  up  marks  of  pos- 
session was  deemed  to  have  gained  the  right,  though  it  had  not 
yet  formed  a  regular  colony  there. ^  We  have  also  seen  that  the 
title  of  the  Indians  was  not  treated  as  a  right  of  propriety  and 
dominion,  but  as  a  mere  right  of  occupancy.^  As  infidels,  heathen, 
and  savages,  they  were  not  allowed  to  possess  the  prerogatives 
belonging  to  absolute,  sovereign,  and  independent  nations."^  The 
territory  over  which  they  wandered,  and  which  they  used  for  their 
temporary  and  fugitive  purposes,  was,  in  respect  to  Christians, 
deemed  as  if  it  were  inhabited  only  by  brute  animals.  There  is 
not  a  single  grant  from  the  British  crown,  from  the  earliest  of 
Elizabeth  down  to  the  latest  of  George  the  Second,  that  affects  to 
look  to  any  title  except  that  founded  on  discovery.  Conquest  or 
cession  is  not  once  alluded  to.  And  it  is  impossible  that  it  should 
have  been ;  for  at  the  time  when  all  the  leading  grants  were  re- 

1  1  Bl.  Comm.  107  ;  Chitty  on  Prerog.  ch.  3,  p.  29. 

2  See  ante,  p.  4  to  22 ;  1  Chalra.  Annals,  &76  ;  3  Wilson's  Works,  234. 
8  Vattel,  B.  1,  ch.  18,  §  205,  206,  207,  208,  209. 

*  Johnson  v.  Mcintosh,  8  Wheat.  R.  543,  576,  595. 

6  Penn  v.  Lord  Baltimore,  1  Ves.  444,  451. 

^  3  Kent's  Comm.  308  to  313 ;  1  Chalm.  Annals,  676,  677 ;  4  Jefferson's  Corresp. 
478  ;   Worcester  v.  Georgia,  6  Peters's  R.  515. 

7  To  do  but  justice  to  those  times,  it  is  proper  to  state  that  this  pretension  did  not 
obtain  universal  approbation.  On  the  contrary,  it  was  opposed  by  some  of  the  most 
enlightened  ecclesiastics  and  philosophers  of  those  days,  as  unjust  and  absurd;  and  es- 
pecially by  two  Spanish  writers  of  eminent  worth,  Soto  and  Victoria.  See  Sir  James 
Mcintosh's  elegant  treatise  on  the  Progress  of  Ethical  Philosophy,  Philadelphia  edit. 
1832,  pp.  49,  50. 


Ctf.  XVI.]  GENERAL  REVIEW.  108 

spectively  made,  there  had  not  been  any  conquest  or  cession  from 
the  natives  of  the  territory  comprehended  in  those  grants.  Even 
in  respect  to  the  territory  of  New  York  and  New  Jersey,  which 
alone  afford  any  pretence  for  a  claim  by  conquest,  they  were  con- 
quered from  the  Dutch,  and  not  from  the  natives,  and  were  ceded 
to  England  by  the  treaty  of  Breda  in  1667.  But  England  claimed 
this  very  territory,  not  by  right  of  this  conquest,  but  by  the  prior 
right  of  discovery.^  The  original  grant  was  made  to  the  Duke  of 
York  in  1664,  founded  upon  this  right,  and  the  subsequent  con- 
firmation of  his  title  did  not  depart  from  the  original  foundation. 

§  153.  The  Indians  could  in  no  jiist  sense  be  deemed  a  con- 
quered people,  who  had  been  stripped  of  their  territorial  posses- 
sions by  superior  force.  They  were  considered  as  a  people  not 
having  any  regular  laws,  or  any  organized  government,  but  as 
mere  wandering  tribes.^  They  were  never  reduced  into  actual 
obedience,  as  dependent  communities  ;  and  no  scheme  of  general 
legislation  over  them  was  ever  attempted.  For  many  purposes 
they  were  treated  as  independent  communities,  at  liberty  to  gov- 
ern themselves,  so  always  that  they  did  not  interfere  with  the 
paramount  rights  of  the  European  discoverers.^ 

§  154.  For  the  most  part  at  the  time  of  the  first  grants  of  the 
colonial  charters,  there  was  not  any  possession  or  occupation  of 
the  territory  by  any  British  emigrants.  The  main  object  of  theso 
charters,  as  stated  in  the  preliminary  recitals,  was  to  invite  emi- 
grations, to  people  the  country,  to  found  colonies,  and  to  Christian- 
ize the  natives.  Even  in  case  of  a  conquered  country,  where  there 
are  no  laws  at  all  existing,  or  none  which  are  adapted  to  a  civil- 
ized community,  or  where  the  laws  are  silent,  or  are  rejected  and 
none  substituted,  the  territory  must  be  governed  according  to  the 
rules  of  natural  equity  and  right.  And  Englishmen  removing 
thither  must  be  deemed  to  carry  with  them  those  rights  and  privi- 
leges which  belong  to  them  in  their  native  country.* 

1  4  Wheaton,  575,  576,  588.  See  also  1  Tuck.  Black.  Appx.  332 ;  1  Chalm.  An- 
nals, 676. 

2  Vattel,  B.  1,  ch.  18,  §  208,  209 ;  3  Kent's  Comm.  312,  313. 

8  4  Wheat.  E.  590,  591,  596 ;  1  Grahame's  Hist,  of  America,  44 ;  2  Kent's  Comm. 
311 ;  Worcester  v.  State  of  Georgia,  6  Peters's  Sup.  Ct.  Rep.  515.  [Mackey  v.  Coxe,  18 
How.  104  ;  Wheat.  Int.  Law,  pt.  1,  ch.  2,  §  14.] 

*  2  Salk.  411,  412.  See  also  Hall  v.  Campbell.,  Cowp.  R.  204,  211,  212 ;  1  Chalm. 
Ann.  14,  15,678,  679,  689,  690;  1  Chalm.  Opinions,  194;  2  Chalm.  Opinions,  202; 
Chitty  on  Prerog.  ch.  2 ;  2  Wilson's  Law  Lect.  48,  49. 


104  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

§  155.  The  very  ground,  therefore,  assumed  by  England,  as  the 
foundation  of  its  title  to  America,  and  the  invitations  to  its  own 
subjects  to  people  it,  carry  along  with  them  a  necessary  implica- 
tion that  the  plantations,  subsequently  formed,  were  to  be  deemed 
a  part  of  the  ancient  dominions  ;  and  the  subjects  inhabiting  them 
to  belong  to  a  common  country,  and  to  retain  their  former  rights 
and  privileges.  The  government,  in  its  public  policy  and  arrange- 
ments, as  well  as  in  its  charters,  proclaimed  that  the  colonies  were 
established  with  a  view  to  extend  and  enlarge  the  boundaries  of 
the  empire.  The  colonies,  when  so  formed,  became  a  part  of  the 
state  equally  with  its  ancient  possessions.^  It  is  not,  therefore, 
without  strong  reason,  that  it  has  been  said  that  "  the  colonists, 
continuing  as  much  subjects  in  the  new  establishment,  where  they 
had  freely  placed  themselves  [with  the  consent  of  the  crown] ,  as 
they  had  been  in  the  old,  carried  with  them  their  birthright,  —  the 
laws  of  their  country,  because  the  customs  of  a  free  people  are  a 
part  of  their  liberty  ; "  and  that  "  the  jurisprudence  of  England 
became  that  of  the  colonies,  so  far  as  it  was  applicable  to  the  situ- 
ation at  which  they  had  newly  arrived,  because  they  were  Eng- 
lishmen residing  within  a  distant  territory  of  the  empire."  ^  And 
it  may  be  added,  that  as  there  were  no  other  laws  to  govern  them, 
the  territory  was  necessarily  treated  as  a  deserted  and  unoccupied 
country,  annexed  by  discovery  to  the  old  empire,  and  composing 
a. part  of  it.^  Moreover,  even  if  it  were  possible  to  consider  the 
case  as  a  case  of  conquest  from  the  Indians,  it  would  not  follow, 
if  the  natives  did  not  remain  there,  but  deserted  it  and  left  it  a 
vacant  territory,  that  the  rule  as  to  conquests  would  continue  to 
apply  to  it.  On  the  contrary,  as  soon  as  the  crown  should  choose 
to  found  an  English  colony  in  such  vacant  territory,  the  general 
principle  of  settlements  in  desert  countries  would  govern  it.  It 
would  cease  to  be  a  conquest,  and  become  a  colony,  and  as  such 
be  affected  by  the  British  laws.  This  doctrine  is  laid  down  with 
great  clearness  and  force  by  Lord  Mansfield,  in  his  celebrated 
judgment  in  Hall  v.  Campbell.^    In  a  still  more  recent  case  it 

1  Vattel,  B.  1,  eh.  18,  §  209;  1  Chalm.  Annals,  676,  677,  678,  679;  8  Wheat.  R. 
595 ;  Grotius,  B.  2,  eh.  9,  h  10. 

2  1  Chalm.  Ann.  677;  Id.  14,  15,  658;  2  Wilson's  Law  Lect.  48,  49;  3  Wilson's 
Law  Lect.  234,  235. 

8  Roberdeau  v.  Rous,  1  Atk.  R.  543,  544  ;  Vaughan,  R.  300,  400 ;  Show.  Pari.  Cas. 
31 ;  8  Wheat.  R.  595 ;  1  Tuck.  Black.  Comm.  App.  382,  383 ;  Dummer's  Defence,  1 
American  Tracts,  18.  *  Cowp.  R.  204,  211,  212. 


CH.  XVI.]  GENERAL  REVIEW.  105 

was  laid  down  by  Lord  Ellenborough  that  the  law  of  England 
might  properly  be  recognized  by  subjects  of  England  in  a  place 
occupied  temporarily  by  British  troops,  who  would  impliedly  carry 
that  law  with  them.^ 

§  156.  The  doctrine  of  Mr.  Justice  Blackstone,  therefore,  may 
well  admit  of  serious  doubt  upon  general  principles.  But  it  is 
manifestly  erroneous,  so  far  as  it  is  applied  to  the  colonies  and 
plantations  composing  our  Union.  In  the  charters  under  which 
all  these  colonies  were  settled,  with  a  single  exception ,2  there  is, 
as  has  been  already  seen,  an  express  declaration  that  all  subjects 
and  their  children  inhabiting  therein  shall  be  deemed  natural- 
born  subjects,  and  shall  enjoy  all  the  privileges  and  immunities 
thereof.  There  is  also  in  all  of  them  an  express  restriction  that 
no  laws  shall  be  made  repugnant  to  those  of  England,  or  that  as 
near  a«  may  be  conveniently,  they  shall  be  consonant  with  and 
conformable  thereto  ;  and  either  expressly  or  by  necessary  impli- 
cation it  is  provided  that  the  laws  of  England  so  far  as  applicable 
shall  be  in  force  there.  Now  this  declaration,  even  if  the  crown 
previously  possessed  a  right  to  establish  what  laws  it  pleased 
over  the  territory,  as  a  conquest  from  the  natives,  being  a  funda- 
mental rule  of  the  original  settlement  of  the  colonies,  and  before 
the  emigrations  thither,  was  conclusive,  and  could  not  afterwards 
be  abrogated  by  the  crown.  It  was  an  irrevocable  annexation  of 
the  colonies  to  the  mother  country,  as  .dependencies  governed  by 
the  same  laws  and  entitled  to  the  same  rights.^ 

§  157.  And  so  has  been  the  unitbrm  doctrine  in  America  ever 
since  the  settlement  of  the  colonies.  The  universal  principle  (and 
the  practice  has  conformed  to  it)  has  been,  that  the  common  law 
is  our  birthright  and  inheritance,  and  that  our  ancestors  brought 
hither  with  them  upon  their  emigration  all  of  it  which  was  appli- 
cable to  their  situation.  The  whole  structure  of  our  present 
jurisprudence  stands  upon  the  original  foundations  of  the  common 
law.* 

1  Rex  V.  Brampton,  10  East,  R.  282,  288,  289. 

2  That  of  Pennsylvania,  1  Grahame's  Hist.  41,  note;  1  Chalra.  Annals,  14,  15,  639, 
640,  658  ;  2  Wilson's  Law  Lect.  48,  49. 

8  Stokes's  Colon.  30 ;  Hall  v.  Campbell,  Cowp.  R.  204,  212;  1  Tack.  Black.  Comm. 
App.  383,  384  ;  Chitty,  Prerog.  32,  33. 

*  Notwithstanding  the  clearness  of  this  doctrine,  both  from  the  language  of  the  char- 
ters, and  the  whole  course  of  judicial  decisions,  Mr.  Jefferson  has  treated  it  with  an  ex- 
traordinary degree  of  derision  if  not  of  contempt.  "I  deride  (says  he)  with  you  the 
ordinary  doctrine,  that  we  brought  with  us  from  England  the  common-law  rights. 


106  HISTORY  OF  THE  C(JlONIES.  [bOOK  I. 

§  158.  We  thus  see  in  a  very  clear  light  the  mode  in  which  the 
common  law  was  first  introduced  into  the  colonies  ;  as  well  as  the 

This  narrow  notion  was  a  favorite  in  the  first  moment  of  rallying  to  our  rights  against 
Great  Britain.  But  it  was  that  of  men  who  felt  their  rights,  before  they  had  thought  of 
their  explanation.  The  truth  is,  that  we  brought  with  us  the  rights  of  men,  of  expatri- 
ated men.  On  our  arrival  here  the  question  would  at  once  arise,  by  what  law  will  we 
govern  ourselves  ?  The  resolution  seems  to  have  been,  by  that  system  with  which  we 
are  familiar ;  to  be  altered  by  ourselves  occasionally,  and  adapted  to  our  new  situation." 
4  Jefferson's  Corresp.  178. 

How  differently  did  the  Congress  of  1774  think.  They  unanimously  resolved,  "  That 
the  respective  colonies  are  entitled  to  the  common  law  of  England,  and  more  especially  to 
the  great  and  inestimable  privilege  of  being  tried  by  their  peers  of  the  vicinage  accord- 
ing to  the  course  of  that  law."  They  further  resolved,  "  that  they  were  entitled  to  the 
benefit  of  such  of  the  English  statutes  as  existed  at  the  time  of  their  colonization,  and 
which  they  have  by  experience  respectively  found  to  be  applicable  to  their  several  and 
local  circumstances."  They  also  resolved,  that  their  ancestors  at  the  time  of  their  em- 
igration were  "  entitled  "  (not  to  the  rights  of  men,  of  expatriated  men,  but)  "  to  all  the 
rights,  liberties,  and  immunities  of  free  and  natural-bom  subjects  within  the  realm  of 
England."  Journal  of  Congress,  Declaration  of  Rights  of  the  Colonies,  Oct.  14,  1774, 
p.  27  to  31. 

1  Chalm.  Opinions,  202,  220,  295 ;  1  Chalm.  Annals,  677,  681,  682;  I  Tuck.  Black. 
Comm.  385  ;  1  Kent's  Comm.  322 ;  Journal  of  Congress,  1774,  p.  28,  29;  2  Wilson's 
Law  Lect.  48,  49,  50  ;  1  Tuck.  Black.  Comm.  App.  380  to  384  ;  Van  Ness  v.  Packard, 
2  Peters's  Sup.  R.  137,  144. 

[Mr.  Jefferson,  as  will  be  seen  from  the  quotation  above,  did  not  question,  but  ex- 
pressly asserted,  that  the  English  common  law  was  in  force  in  the  colonies ;  but  he 
speaks  of  it  as  having  been  accepted  by  the  colonists,  who  might  on  the  other  hand  have 
chosen  to  reject  it.  Further  on  in  the  same  letter  (to  Judge  Tyler,  Jefferson's  Works, 
VI.  65)  he  says  :  "  The  state  of  the  English  law  at  the  date  of  our  emigration  consti- 
tuted the  system  adopted  here."  And  in  his  notes  on  Virginia  he  says  :  "  The  laws  of 
England  seem  to  have  been  adopted  by  consent  of  the  settlers,  which  might  easily  enough 
have  been  done  whilst  they  were  few  and  living  all  together.  Of  such  adoption,  however, 
we  have  no  other  proof  than  their  practice  till  the  year  1661,  when  they  were  expressly 
adopted  by  an  act  of  the  assembly,  except  so  far  as  '  a  difference  of  condition  '  rendered 
them  inapplicable."  Jefferson's  Works,  VIII.  374.  See  also  Ibid.  IX.  282.  When,  at 
the  breaking  out  of  the  Revolution,  the  laws  were  revised  by  a  commission,  of  which 
Mr.  Jefferson  Avas  a  member,  the  common  law  of  England  was  made  the  basis  of  the 
revision.  Jefferson's  Works,  VIII.  379.  The  true  rule  as  to  the  extent  to  which  the 
common  law  prevailed  in  the  colonies  is  thus  stated  by  Mr.  Justice  Story,  in  one  of  his 
judicial  decisions.  "  The  common  law  of  England,"  he  says,  "  is  not  to  be  taken,  in 
all  respects,  to  be  that  of  America.  Our  ancestors  brought  with  them  its  general  prin- 
ciples, and  claimed  it  as  their  birthright ;  but  they  brought  with  them  and  adopted  only 
that  portion  which  was  applicable  to  their  condition."  Van  Ness  v.  Packard,  2  Pet. 
144.  See  also  Chishdm  v.  Georgia,  2  Dall.  435 ;  Town  of  Pawlett  v.  Clark,  9  Cranch, 
292  ;  Wheaton  v.  Peters,  8  Pet.  541.  The  acts  of  Parliament  passed  after  the  settlement 
of  the  American  colonies  were  not  in  force  therein,  unless  made  so  by  express  words 
or  by  adoption.  Commonwealth  v.  Lodge,  2  Grat.  579  ;  Pemble  v.  Clifford,  2  McCord, 
31.  See  also  Baker  v.  Mattocks,  Quincy,  72  ;  Cathcart  v.  Robinson,  5  Pet.  280  ;  Swif  v. 
Towsey,  5  Ind.  196.  For  the  different  views  taken  by  English  and  American  statesmen 
upon  the  subject  of  this  note  prior  to  the  Revolution,  see  Works  of  Franklin,  by  Sparks, 
IV.  271.] 


CH.  XVI.]  GENERAL  REVIEW.  t(jff 

true  reason  of  the  exceptions  to  it  to  be  found  in  our  colonial 
usages  and  laws.^  It  was  not  introduced  as  of  original  and  uni- 
versal obligation  in  its  utmost  latitude ;  but  the  limitations  con- 
tained in  the  bosom  of  the  common  law  itself,  and  indeed  consti- 
tuting a  part  of  the  law  of  nations,  were  affirmatively  settled  and 
recognized  in  the  respective  charters  of  settlement.  Thus  limited 
and  defined,  it  has  become  the  guardian  of  our  political  and  civil 
rights  ;  it  has  protected  our  infant  liberties,  it  has  watched  over 
our  maturer  growth,  it  has  expanded  with  our  wants,  it  has  nur- 
tured that  spirit  of  independence  which  checked  the  first  ap- 
proaches of  arbitrary  power,  it  has  enabled  us  to  triumph  in  the 
midst  of  difficulties  and  dangers  threatening  our  political  exist- 
ence ;  and,  by  the  goodness  of  God,  we  are  now  enjoying,  under 
its  bold  and  manly  principles,  the  blessings  of  a  free,  independent, 
and  united  government.^ 

1  2  Wilson's  Law  Lect.  48  to  55  ;  1  Tuck.  Black.  Comm.  App.  380  to  384 ;  1  Chalm. 
Opinions,  220. 

2  The  question,  whether  the  common  law  is  applicable  to  the  United  States,  in  their 
national  character,  relations,  and  government,  has  been  much  discussed  at  different 
periods  of  the  government,  principally,  however,  with  reference  to  the  jurisdiction  and 
punishment  of  common-law  offences  by  the  courts  of  the  United  States.  It  would  be  a 
most  extraordinary  state  of  things  that  the  common  law  should  be  the  basis  of  the  juris- 
prudence of  the  States  originally  composing  the  Union,  and  yet  a  government  ingrafted 
upon  the  existing  system  should  have  no  jurisprudence  at  all.  If  such  be  the  result, 
there  is  no  guide  and  no  rule  for  the  courts  of  the  United  States,  or,  indeed,  for  any 
other  department  of  government,  in  the  exercise  of  any  of  the  powers  confided  to  them, 
except  so  far  as  Congress  has  laid,  or  shall  lay,  down  a  rule.  In  the  immense  mass  of 
rights  and  duties,  of  contracts  and  claims,  growing  out  of  the  Constitution  and  laws  of 
the  United  States,  (upon  which  positive  legislation  has  hitherto  done  little  or  nothing,) 
what  is  the  rule  of  decision,  and  interpretation,  and  restriction  1  Suppose  the  simplest 
case  of  contract  with  the  government  of  the  United  States,  how  is  it  to  be  construed  1 
How  is  it  to  be  enforced  ?  What  are  its  obligations  1  Take  an  act  of  Congress,  how 
is  it  to  be  interpreted  1  Are  the  rules  of  the  common  law  to  furnish  the  proper  guide, 
or  is  every  court  and  department  to  give  it  any  interpretation  it  may  please,  according  to 
its  own  arbitrary  will  ?  My  design  is  not  here  to  discuss  the  subject,  (for  that  would 
require  a  volume,)  but  rather  to  suggest  some  of  the  difficulties  attendant  upon  it.  Those 
readers  who  are  desirous  of  more  ample  information  are  referred  to  Duponceau  on  the 
Jurisdiction  of  the  Courts  of  the  United  States ;  to  1  Tucker's  Black.  Comm.  App. 
note  E,  p.  372  ;  to  1  Kent's  Comm.  Lect.  16,  p.  311  to  322  ;  to  the  report  of  the  Vir- 
ginia legislature  of  1799-1800;  to  Rawle  on  the  Constitution,  ch.  30,  p.  258;  to  tho 
North  American  Review,  July,  1825  ;  and  to  Mr.  Bayard's  Speech  in  the  Debates  oa 
the  Judiciary,  in  1802,  p.  372,  &c.  Some  other  remarks  illustrative  of  it  will  necessa- 
rily arise  in  discussing  the  subject  of  impeachments. 

["  It  is  clear,"  says  Mr.  Justice  McLean,  in  Wheaton  v.  Peters,  8  Pet.  658,  "  that  there 
can  be  no  common  law  of  the  United  States.  The  Federal  government  is  composed  of 
twenty-four  sovereign  and  independent  States ;  each  of  which  may  have  its  local  usages. 


108  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

customs,  and  common  law.  There  is  no  principle  which  pervades  the  Union,  and  has 
the  authority  of  law,  that  is  not  embodied  in  the  Constitution  or  laws  of  the  Union. 
The  common  law  could  be  made  a  part  of  our  Federal  system  only  by  legislative  adop- 
tion. When,  therefore,  a  common-law  right  is  asserted,  we  must  look  to  the  State  in 
which  the  controversy  originated."  See  to  the  same  effect,  Kendall  v.  United  States,  12 
Pet.  524 ;  Lorman  v.  Clarke,  2  McLean,  568.  Therefore  the  United  States  cannot  ex- 
ercise a  common-law  jurisdiction  in  criminal  cases.  Congress  must  first  make  an  act  a 
crime,  affix  a  punishment  to  it,  and  declare  the  court  that  shall  have  jurisdiction  of  the 
offence,  before  such  court  can  take  cognizance  thereof.  United  States  v.  Hudson,  7 
Cranch,  32 ;  Same  v.  Lancaster,  2  McLean,  433  ;  Same  v.  New  Bedford  Bridge,  1  Wood. 
&  M.  435  ;  Same  v.  Wilson,  3  Blatch.  435.  But  the  national  courts,  after  jurisdiction 
is  conferred,  are  to  look  to  the  common  law,  in  the  absence  of  statutory  provisions,  for 
rules  to  guide  them  in  the  exercise  of  their  functions,  in  criminal  as  well  as  civil  cases. 
Conklin's  Treatise,  82.] 


CH.  XVII.]  GENERAL  REVIEW.  109 


CHAPTER  XVII. 

GENERAL  REVIEW  OF  THE  COLONIES. 

§  159.  In  respect  to  their  interior  polity,  the  colonies  have  been 
very  properly  divided  by  Mr.  Justice  Blackstone  into  three  sorts ; 
namely,  provincial,  proprietary,  and  charter  governments.  Firsts 
provincial  establishments.  The  constitutions  of  these  depended 
on  the  respective  commissions  issued  by  the  crown  to  the  govern- 
ors, and  the  instructions  which  usually  accompanied  those  com- 
missions.^  These  commissions  were  usually  in  one  form ,2  ap- 
pointing a  governor,  as  the  king's  representative  or  deputy,  who 
was  to  be  governed  by  the  royal  instructions,  and  styling  him  cap- 
tain-general and  governor-in-chief  over  the  province,  and  chancel- 
lor, vice-admiral,  and  ordinary  of  the  same.  The  crown  also 
appointed  a  council  who,  besides  their  legislative  authority,  were 
to  assist  the  governor  in  the  discharge  of  his  official  duties ;  and 
power  was  given  him  to  suspend  them  from  office,  and  in  case  of 
vacancies  to  appoint  others,  until  the  pleasure  of  the  crown  should 
be  known.  The  commissions  also  contained  authority  to  convene 
a  general  assembly  of  representatives  of  the  freeholders  and 
planters  ;  ^  and  under  this  authority  provincial  assemblies  com- 
posed of  the  governor,  the  council,  and  the  representatives,  were 
constituted  (the  council  being  a  separate  branch  or  upper  house, 
and  the  governor  having  a  negative  upon  all  their  proceedings,  and 
also  the  right  of  proroguing  and  dissolving  them)  ;  which  assem- 
blies had  the  povrer  of  making  local  laws  and  ordinances,  not 
repugnant  to  the  laws  of  England,  but  as  near  as  may  be  agree- 

1  1  Bl.  Comm.  108;  Stokes's  Hist.  Colon.  20,  23,  149,  184,  185;  Cowper's  R.  207, 
212;  Com.  Dig.  Navigation,  G.  1 ;  2  Doug.  Summ.  163,  note;  Id.  251;  1  Doug. 
Summ.  207. 

2  Stokes's  Hist.  Colon.  14,  23,  149,  150, 166,  184,  185,  191,  199,  202,  237,  239 ;  1  BL 
Comm.  108.  Stokes  has  given,  in  his  History  of  the  Colonies,  ch.  4,  p.  149,  &c.,  a 
copy  of  one  of  these  commissions.  A  copy  is  also  prefixed  to  the  Provincial  Laws  of 
New  Hampshire,  edition  of  1767.  See  2  Hewatt's  History  of  South  Carolina  and 
Georgia,  and  Account  of  the  Provincial  Grovernments. 

8  Stokes's  Hist.  Colon.  155,  237,  240,  241,  242,  251 ;  1  Pitk.  Hist.  71 ;  1  Chalmers's 
Annals,  683.  See  in  Parliamentary  Debates,  Vol.  II.,  for  1785  (old  edition),  in  Appen- 
dix, copies  of  the  Charters  of  the  American  Colonies. 


110  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

able  thereto,  subject  to  the  ratification  and  disapproval  of  the  crown. 
The  governors  also  had  power,  with  the  advice  of  council,  to  estab- 
lish courts,  and  to  appoint  judges  and  other  n;iagistrates  and  offi- 
cers for  the  province ;  to  pardon  offences,  and  to  remit  fines  and 
forfeitures  ;  to  collate  to  churches  and  benefices  ;  to  levy  military 
forces  for  defence ;  and  to  execute  mai-tial  law  in  time  of  invasion, 
war,  and  rebellion.^  Appeals  lay  to  the  king  in  council,  from  the 
decisions  of  the  highest  courts  of  judicature  of  the  province,  as, 
indeed,  they  did  from  all  others  of  the  colonies.  Under  this  form 
of  government,  the  provinces  of  New  Hampshire,  New  York,  New 
Jersey,  Virginia,  the  Carolinas,  and  Georgia  were  governed  (as 
we  have  seen)  for  a  long  period,  and  some  of  them  from  an  early 
period  after  their  settlement.^ 

§  160.  Secondly,  proprietary  governments.  These  (as  we  have 
seen)  were  granted  out  by  the  crown  to  individuals,  in  the  nature 
of  feudatory  principalities,  with  all  the  inferior  royalties  and  sub- 
ordinate powers  of  legislation  which  formerly  belonged  to  the 
owners  of  counties  palatine. ^  Yet  still  there  were  these  express 
conditions,  that  the  ends  for  which  the  grant  was  made  should 
be  substantially  pursued ;  and  that  nothing  should  be  done  or 
attempted  which  might  derogate  from  the  sovereignty  of  the 
mother  country.  In  the  proprietary  government,  the  governors 
were  appointed  by  the  proprietaries,  and  legislative  assemblies 
were  convened  under  their  authority ;  and  indeed  all  the  usual 
prerogatives  were  exercised  which  in  provincial  governments 
belonged  to  the  crown.*  Three  only  existed  at  the  period  of  the 
American  Revolution,  namely,  the  proprietary  governments  of 
Maryland,  Pennsylvania,  and  Delaware.^  The  former  had  this 
peculiarity  in  its  character,  that  its  laws  were  not  subject  to  the 
supervision  and  control  of  the  crown  ;  whereas,  in  both  the  latter 
such  a  supervision  and  control  were  expressly  or  impliedly  pro- 
vided for.^ 

§  161.  Thirdly,  charter  governments.  Mr.  Justice  Blackstone 
describes  them  as  "  in  the  nature  of  civil  corporations,  with 
the  power  of  making  by-laws  for  their  own  internal  regulation, 
not  contrary  to  the  laws  of  England ;  and  with  such  rights  and 

1  Stokes's  Hist  of  Colonies,  157,  158,  184,  264.        *  i  Doug.  Summ.  207. 
»  1  Black.  Comra.  108  ;  Stokes's  Hist.  Colon.  19.     *  Stokes's  Hist,  of  Colon.  22. 
6  1  Ptk.  Hist.  55 ;  Stokes's  Hist,  of  Colon.  19 ;  2  Doug.  Summ.  207. 
«  1  Chalmers's  Annals,  203,  637.  '  1  Bl.  Comm.  108. 


CH.  XVII.]  GENERAL  REVIEW.  HI 

authorities  as  are  specially  given  them  in  their  several  charters 
of  incorporation.  They  have  a  governor  named  by  the  king, 
(or,  in  some  proprietary  colonies,  by  the  proprietor,)  who  is  his 
representative  or  deputy.  They  liave  courts  of  justice  of  their 
own,  from  whose  decisions  an  appeal  lies  to  the  king  and  council 
here  in  England.  Their  general  assemblies,  which  are  their  house 
of  commons,  together  with  their  council  of  state,  being  their  upper 
house,  with  the  concurrence  of  the  king,  or  liis  representative  the 
governor,  make  laws  suited  to  their  own  emergencies."  This  is 
by  no  means  a  just  or  accurate  description  of  the  charter  govern- 
ments. They  could  not  properly  be  considered  as  mere  civil  cor- 
porations of  the  realm,  empowered  to  pass  by-laws  ;  but  rather  as 
great  political  establishments  or  colonies,  possessing  the  general 
powers  of  government  and  rights  of  sovereignty,  dependent,  in- 
deed, and  subject  to  the  realm  of  England,  but  still  possessing 
within  their  own  territorial  limits  the  general  powers  of  legislation 
and  taxation.^  The  only  charter  governments  existing  at  the 
period  of  the  American  Revolution  were  those  of  Massachusetts, 
Rhode  Island,  and  Connecticut.  The  first  charter  of  Massachu- 
setts might  be  open  to  the  objection  that  it  provided  only  for  a 
civil  corporation  within  the  realm,  and  did  not  justify  the  assump- 
tion of  the  extensive  executive,  legislative,  and  judicial  powers, 
which  were  afterwards  exercised  upon  the  removal  of  that  charter 
to  America.  And  a  similar  objection  might  be  urged  against  the 
charter  of  the  Plymouth  colony.  But  the  charter  of  William  and 
Mary,  in  1691,  was  obviously  upon  a  broader  foundation,  and  was 
in  the  strictest  sense  a  charter  for  general  political  government,  a 
constitution  for  a  state,  with  sovereign  powers  and  prerogatives, 
and  not  for  a  mere  municipality.  By  this  last  charter  the  organi- 
zation of  the  different  departments  of  the  government  was,  in 
some  respects,  similar  to  that  in  the  provincial  governments  ;  the 
governor  was  appointed  by  the  crown  ;  the  council  annually  chosen 
by  the  general  assembly  ;  and  the  house  of  representatives  by  the 
people.  But  in  Connecticut  and  Rhode  Island,  the  charter  gov- 
ernments were  organized  altogether  upon  popular  and  democrati- 
cal  principles ;  the  governor,  council,  and  assembly  being  annually 
chosen  by  the  freemen  of  the  colony,  and  all  other  officers  ap- 

1  1  Chalmers's  Annals,  274,  275,  293,  687 ;  1  Tuck.  Black.  Coram.  App.  385 ;  1 
Pitk.  Hist.  108 ;  1  Hutch.  Hist.  No.  13,  p.  529  ;  Mass.  State  Papers,  338,  339,  358, 
359 ;  Stokes's  Hist,  of  Colon.  21 ;  1  Doug.  Summ.  207. 


112  HISTORY  OP  THE  COLONIES.  [BOOK  I. 

pointed  by  their  authority .^  By  the  statutes  of  7  &  8  Wil- 
liam 3,  (eh.  22,  §  6,)  it  was  indeed  required  that  all  governors 
appointed  in  charter  and  proprietary  governments  should  be  ap- 
proved of  by  the  crown,  before  entering  upon  the  duties  of  their 
office ;  but  this  statute  was,  if  at  all,  ill  observed,  and  seems  to 
have  produced  no  essential  change  in  the  colonial  policy .^ 

§  162.  The  circumstances  in  which  the  colonies  were  generally 
agreed,  notwithstanding  the  diversities  of  their  organization  into 
provincial,  proprietary,  and  charter  governments,  were  the  follow- 
ing:— 

§  163.  (1.)  They  enjoyed  the  rights  and  privileges  of  British- 
born  subjects,  and  the  benefit  of  the  common  laws  of  England ; 
and  all  their  laws  were  required  to  be  not  repugnant  unto,  but  as 
near  as  might  be,  agreeable  to,  the  laws  and  statutes  of  England.^ 
This,  as  we  have  seen,  was  a  limitation  upon  the  legislative  power 
contained  in  an  express  clause  of  all  the  charters,  and  could  not 
be  transcended  without  a  clear  breach  of  their  fundamental  con- 
ditions. A  very  liberal  exposition  of  this  clause  seems,  however, 
always  to  have  prevailed,  and  to  have  been  acquiesced  in,  if  not 
adopted,  by  the  crown.  Practically  speaking,  it  seems  to  have 
been  left  to  the  judicial  tribunals  in  the  colonies  to  ascertain  what 
part  of  the  common  law  was  applicable  to  the  situation  of  the 
colonies  ;  *  and  of  course,  from  a  difference  of  interpretation,  the 
common  law,  as  actually  administered,  was  not  in  any  two  of  the 
colonies  exactly  the  same.  The  general  foundation  of  the  local 
jurisprudence  was  confessedly  composed  of  the  same  materials ; 
but  in  the  actual  superstructure  they  were  variously  combined  and 
modified,  so  as  to  present  neither  a  general  symmetry  of  design 
nor  a  unity  of  execution. 

§  164.  In  regard  to  the  legislative  power,  there  was  a  still 
greater  latitude  allowed ;  for  notwithstanding  the  cautious  ref- 
erence in  the  charters  to  the  laws  of  England,  the  assemblies 
actually  exercised  the  authority  to  abrogate  every  part  of  the 
common  law,  except  that  which  united  the  colonies  to  the  parent 
state  by  the  general  ties  of  allegiance  and  dependency  ;  and  every 
part  of  the  statute  law,  except  those  acts  of  Parliament  which 

1  1  Chalmers's  Annals,  274,  293,  294 ;  Stokes's  Hist.  Colon.  21,  22,  23. 

2  1  Chalmers's  Annals,  295  ;  Stokes's  Hist.  Colon.  20. 

8  Com.  Dig.  Navigation,  G.  1 ;  Id.  Ley.  C. ;  2  Wilson's  Law  Lect.  48,  49,  50,  51,  52. 
*  1  Chalm.  Annals,  677,  678,  687  ;  1  Tucker's  Black.  Coram.  384 ;  1  Vez.  444,  449 ; 
2  WUson's  Law  Lect.  49  to  54 ;  Mass.  State  Papers  (ed.  1818,  375,  390,  391). 


CH.  XVII.]  GENERAL  REVIEW.  118 

expressly  prescribed  rules  for  the  colonies,  and  necessarily  bound 
them,  as  integral  parts  of  the  empire,  in  a  general  system,  formed 
for  all,  and  for  the  interest  of  all.^  To  guard  this  superintending 
authority  with  more  effect,  it  was  enacted  by  Parliament  in  7  & 
8  William  3,  ch.  22,  "  that  all  laws,  by-laws,  usages,  and  cus- 
toms which  should  be  in  practice  in  any  of  the  plantations,  repug- 
nant to  any  law  made,  or  to  be  made  in  this  kingdom  relative  to 
the  said  plantations,  shall  be  utterly  void,  and  of  none  effect."  ^ 

§  165.  It  was  under  the  consciousness  of  the  full  possession  of 
the  rights,  liberties,  and  immunities  of  British  subjects,  that  the 
colonists  in  almost  all  the  early  legislation  of  their  respective  as- 
semblies insisted  upon  a  declaratory  act,  acknowledging  and  con- 
firming them.3  And  for  the  most  part  they  thus  succeeded  in 
obtaining  a  real  and  effective  Magna  Charta  of  their  liberties. 
The  trial  by  jury  in  all  cases,  civil  and  criminal,  was  as  firmly 
and  as  universally  established  in  the  colonies  as  in  the  mother 
country. 

§  166.  (2.)  In  all  the  colonies  local  legislatures  were  estab- 
lished, one  branch  of  which  consisted  of  representatives  of  the 
people  freely  chosen  to  represent  and  defend  their  interests,  and 
possessing  a  negative  upon  all  laws.*  We  have  seen  that  in  the 
original  structure  of  the  charters  of  the  early  colonies  no  provision 
was  made  for  such  a  legislative  body.  But  accustomed  as  the 
colonists  had  been  to  possess  the  rights  and  privileges  of  Eng- 
lishmen, and  valuing  as  they  did  above  all  others  the  right  of 
representation  in  Parliament,  as  the  only  real  security  for  their 
political  and  civil  liberties,  it  was  easy  to  foresee  that  they  would 
not  long  endure  the  exercise  of  any  arbitrary  power ;  and  that 
they  would  insist  upon  some  share  in  framing  the  laws  by  which 
they  were  to  be  governed.  We  find  accordingly  that  at  an  early 
period  [1619]  a  house  of  burgesses  was  forced  upon  the  then  pro- 
prietors of  Virginia.^    In  Massachusetts,  Connecticut,  New  Hamp- 

1  1  Chalmers's  Annals,  139,  140,  671,  675,  684,  687  ;  1  Tucker's  Black.  Comm.  38, 
App. ;  2  Wilson's  Law  Lect.  49,  50;  1  Doug.  Summ.  213;  1  Pitk.  Hist.  108;  Mass. 
State  Papers,  345,  346,  347,  351  to  364,  375,  390 ;  Dummer's  Defence,  1  American 
Tracts,  65,  &c. 

^  Stokes's  Colon. 

8  1  Pitk.  Hist.  88,  89;  Hutch.  Coll.  201,  &c. ;  1  Chalmers's  Annals,  678;  2  Doug. 
Summ.  193. 

*  1  Doug.  Summ.  213  to  215. 

^  Kobertson's  America,  B.  9. 
VOL.  I.  8 


114  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

shire,  and  Rhode  Island  the  same  course  was  pursued.^  And  Mr. 
Hutchinson  has  correctly  observed  that  all  the  colonies  before  the 
reign  of  Charles  the  Second  (Maryland  alone  excepted,  whose  char- 
ter contained  an  express  provision  on  the  subject)  settled  a  model 
of  government  for  themselves,  in  which  the  people  had  a  voice, 
and  representation  in  framing  the  laws,  and  in  assenting  to  bur- 
dens being  imposed  upon  themselves.  After  the  restoration, 
there  was  no  instance  of  a  colony  without  a  representation  of  the 
people,  nor  any  attempt  to  deprive  the  colonies  of  this  privilege, 
except  during  the  brief  and  arbitrary  reign  of  King  James  the 
Second.2 

§  167.  In  the  proprietary  and  charter  governments,  the  right 
of  the  people  to  be  governed  by  laws  established  by  a  local  legis- 
lature, in  which  they  were  represented,  was  recognized  as  a  funda- 

1  1  Tucker's  Black.  Comm.  App.  386. 

2  1  Hutch.  Hist.  Mass.  94,  note;  1  Dong.  Summ.  213.  Mr.  Hutchinson's  remarks 
are  entitled  to  something  more  than  this  brief  notice,  and  a  quotation  is  therefore  made 
of  the  leading  passage.  "  It  is  observable  that  all  the  colonies  before  the  reign  of  King 
Charles  the  Second,  Maryland  excepted,  settled  a  model  of  government  for  themselves. 
Virginia  had  been  many  years  distracted  under  the  government  of  presidents  and  gov- 
ernors, with  councils,  in  whose  nomination  or  removal  the  people  had  no  voice,  until  in 
the  year  1620  a  house  of  burgesses  broke  out  in  the  colony ;  the  king  nor  the  grand  coun- 
cil at  home  not  having  given  any  powers  or  directions  for  it.  The  governor  and  assist- 
ants of  the  Massachusetts  at  first  intended  to  rule  the  people  ;  and,  as  we  have  observed, 
obtained  their  consent  for  it,  but  this  lasted  two  or  three  years  only  ;  and  although  there 
is  no  color  for  it  in  the  charter,  yet  a  house  of  deputies  appeared  suddenly,  in  1634,  to  the 
surprise  of  the  magistrates,  and  the  disappointment  of  their  schemes  for  power.  Con- 
necticut soon  after  followed  the  plan  of  the  Massachusetts.  New  Haven,  although  the 
people  had  the  highest  reverence  for  their  leaders,  and  for  near  thirty  years  in  judicial 
proceedings  submitted  to  the  magistracy  (it  must,  however,  be  remembered,  that  it  was 
annually  elected)  without  a  jury;  yet  in  matters  of  legislation  the  people,  from  the  be- 
ginning, would  have  their  share  by  their  representatives.  New  Hampshire  combined 
together  under  the  same  form  with  Massachusetts.  Lord  Say  tempted  the  principal 
men  of  the  Massachusetts,  to  make  them  and  their  heirs  nobles  and  absolute  governors 
of  a  new  colony ;  but,  under  this  plan,  they  could  find  no  people  to  follow  them.  Bar- 
badoes  and  the  leeward  islands,  began  in  1625,  struggled  under  governors,  and  councils, 
and  contending  proprietors  for  about  twenty  years.  Numbers  suiFered  death  by  the 
arbitrary  sentences  of  courts-martial,  or  other  acts  of  violence,  as  one  side  or  the  other 
happened  to  prevail.  At  length,  in  1 645,  the  assembly  was  called,  and  no  reason  given 
but  this,  viz.  :  That,  by  the  grant  of  the  Earl  of  Carlisle,  the  inhabitants  were  to  enjoy 
all  the  liberties,  privileges,  and  franchises  of  English  subjects ;  and  therefore,  as  it  is 
also  expressly  mentioned  in  the  grant,  could  not  legally  be  bound,  or  charged  by  any 
act  without  their  own  consent.  This  grant,  in  1627,  was  made  by  Charles  the  First,  a 
prince  not  the  most  tender  of  the  subjects'  liberties.  After  the  restoration,  there  is  no 
instance  of  a  colony  settled  without  a  representation  of  the  people,  nor  any  attempt  to 
deprive  the  colonies  of  this  privilege,  except  in  the  arbitrary  reign  of  King  James  the 
Second." 


CH.  XVII.]  GENERAL  REVIEW.  115 

mental  principle  of  the  compact.  But  in  the  provincial  govern- 
ments it  was  often  a  matter  of  debate  whether  the  people  had  a 
right  to  be  represented  in  the  legislature,  or  whether  it  was  a 
privilege  enjoyed  by  the  favor  and  during  the  pleasure  of  the 
crown.  The  former  was  the  doctrine  of  the  colonists ;  the  latter 
was  maintained  by  the  crown  and  its  legal  advisers.  Struggles 
took  place  from  time  to  time  on  this  subject  in  some  of  tlie  pro- 
vincial assemblies,  and  declarations  of  rights  were  there  drawn 
up,  and  rejected  by  the  crown  as  an  invasion  of  its  prerogative.^ 
The  crown  also  claimed,  as  within  its  exclusive  competence,  the 
right  to  decide  what  number  of  representatives  should  be  chosen, 
and  from  what  places  they  should  come.^  The  provincial  assem- 
blies insisted  upon  an  adverse  claim.  The  crown  also  insisted  on 
the  right  to  continue  the  legislative  assembly  for  an  indefinite 
period,  at  its  pleasure,  without  a  new  election,  and  to  dissolve  it 
in  like  manner.  The  latter  power  was  admitted,  but  the  former 
was  most  stoutly  resisted,  as  in  effect  a  destruction  of  the  popular 
right  of  representation,  frequent  elections  being  deemed  vital  to 
their  political  safety,  —  "a  right "  (as  the  Declaration  of  Inde- 
pendence emphatically  pronounces)  "  inestimable  to  them,  and 
formidable  to  tyrants  only."^  In  the  colony  of  New  York  the 
crown  succeeded  at  last  [1T43]  *  in  establishing  septennial  assem- 
blies, in  imitation  of  the  septennial  Parliaments  of  the  parent 
country,  which  was  a  measure  so  offensive  to  the  people  that  it 
constituted  one  of  their  grievances  propounded  at  the  commence- 
ment of  the  American  Revolution.^ 

§  168.  For  all  the  purposes  of  domestic  and  internal  regula- 
tion, the  colonial  legislatures  deemed  themselves  possessed  of 
entire  and  exclusive  authority.  One  of  the  earliest  forms  in 
which  the  spirit  of  the  people  exhibited  itself  on  this  subject  was 
the  constant  denial  of  all  power  of  taxation,  except  under  laws 
passed  by  themselves.  The  propriety  of  their  resistance  of  the 
claim  of  the  crown  to  tax  them  seems  not  to  have  been  denied  by 
the  most  strenuous  of  their  opponents.^     It  was  the  object  of  the 

1  1  Pitk.  Hist.  85,  86,  87 ;  1  Chalm.  Opin.  189 ;  2  Doug.  Summ.  251,  &c. 

2  1  Pitk.  Hist.  88  ;  1  Chalm.  Opin.  268,  272  ;  2  Doug.  Summ.  37,  38, 39,  40,  41,  73  ; 
Chitty,  Prerog.  ch.  3. 

3  1  Pitk.  Hist.  86,  87. 
*  1  Pitk.  Hist.  87,  88. 

^  In  Virginia  also  the  assemblies  were  septennial.     The  Federalist,  No.  52. 
«  Chalm.  Annals,  658,  681,  683,  686,  687  ;  Stat.  6  Geo.  3,  ch.  12. 


116  HISTORY  OF  THE  COLONIES.  [BOOK  L 

latter  to  subject  them  only  to  the  undefined  and  arbitrary  power 
of  taxation  by  Parliament,  The  colonists,  with  a  firmness  and 
public  spirit  which  strikes  us  with  surprise  and  admiration, 
claimed  for  themselves  and  their  posterity  a  total  exemption  from 
all  taxation  not  imposed  by  their  own  representatives.  A  dec- 
laration to  this  effect  will  be  found  in  some  of  the  earliest  of 
colonial  legislation,  —  in  that  of  Plymouth,  of  Massachusetts,  of 
Virginia,  of  Maryland,  of  Rhode  Island,  of  New  York,  and  indeed 
of  most  of  the  other  colonies.^  The  general  opinion  held  by  them 
was,  that  Parliament  had  no  authority  to  tax  them,  because  they 
were  not  represented  in  Parliament.^ 

§  169.  On  the  other  hand,  the  statute  of  6  Geo.  8,  ch.  12, 
contained  an  express  declaration  by  Parliament  that "  the  colonies 
and  plantations  in  America  have  been,  are,  and  of  right  ought  to 
be,  subordinate  unto  and  dependent  upon  the  imperial  crown  and 
Parliament  of  Great  Britain,"  and  that  the  king,  with  the  advice 
and  consent  of  Parliament,  "  had,  hath,  and  of  right  ought  to 
have,  full  power  and  authority  to  make  laws  and  statutes  of  suffi- 
cient force  and  validity  to  bind  the  colonies  and  people  of  America 
in  all  cases  whatsoever."  ^ 

§  170.  It  does  not  appear  that  this  declaratory  act  of  6  Geo. 
3  met  with  any  general  opposition  among  those  statesmen  in 
England  who  were  most  friendly  to  America.  Lord  Chatham,  in 
a  speech  on  the  17th  of  December,  1765,  said :  "  I  assert  the 
authority  of  this  country  over  the  colonies  to  be  sovereign  and 
supreme  in  every  circumstance  of  government  and  legislation. 
But  (he  added)  taxation  is  no  part  of  the  governing  or  legislative 
power ;  taxes  are  the  voluntary  grant  of  the  people  alone."  *    Mr. 

1  1  Pitkin's  Hist.  89,  90,  91 ;  2  Holmes's  Annals,  133,  134,  135 ;  2  Doug.  Summ. 
251 ;  1  Doug.  Summ.  213 ;  3  Hutch.  Coll,  529,  530. 

2  1  Pitkin,  89,  &c.,  97,  127,  129;  Marsh.  Colon.  352,  353;  Appx.  469,  470,  472; 
Chalm.  Annals,  658. 

8  6  Geo.  3,  ch.  12 ;  Stokes's  Colon.  28,  29.  See  also  Marshall  on  Colon,  ch.  13,  p. 
353  ;  Vaughan,  R.  300,  400  ;  1  Pitkin's  Hist.  123. 

*  Mr.  Burke  has  sketched  with  a  most  masterly  hand  the  true  origin  of  this  resist- 
ance to  the  power  of  taxation.  The  passage  is  so  full  of  his  best  eloquence,  and  por- 
trays with  such  striking  fidelity  the  character  of  the  colonists',  that,  notwithstanding  its 
length,  I  am  tempted  to  lay  it  before  the  reader  in  this  note. 

*'  In  this  character  of  the  Americans,  a  love  of  freedom  is  the  predominating  feature, 
which  marks  and  distinguishes  the  whole  ;  and  as  an  ardent  is  always  a  jealous  affec- 
tion, your  colonies  become  suspicious,  restive,  and  untractable,  whenever  they  see  the 
least  attempt  to  wrest  from  them  by  force,  or  shuffle  from  them  by  chicane,  what  they 
think  the  only  advantage  worth  living  for.    This  fierce  spirit  of  liberty  is  stronger  in 


CH.  XVII.]  GENERAL  REVIEW.  117 

Burke,  who  may  justly  be  deemed  the  leader  of  the  colonial  advo- 
cates, maintained  the  supremacy  of  Parliament  to  the  full  extent 

the  English  colonies  probably  than  in  any  other  people  of  the  earth  :  and  this  from  a 
great  variety  of  powerful  causes  ;  which,  to  understand  the  true  temper  of  their  minds, 
and  the  direction  which  this  spirit  takes,  it  will  not  be  amiss  to  lay  open  somewhat  more 
largely. 

"  First,  the  people  of  the  colonies  are  descendants  of  Englishmen.  England,  Sir,  is 
a  nation  which  still,  I  hope,  respects,  and  formerly  adored,  her  freedom.  The  colonists 
emigrated  from  you,  when  this  part  of  your  character  was  most  predominant ;  and 
they  took  this  bias  and  direction  the  moment  they  parted  from  your  hands.  They  are 
therefore  not  only  devoted  to  liberty,  but  to  liberty  according  to  English  ideas,  and  on 
English  principles.  Abstract  liberty,  like  other  mere  abstractions,  is  not  to  be  found. 
Liberty  inheres  in  some  sensible  object ;  and  every  nation  has  formed  to  itself  some 
favorite  point,  which  by  way  of  eminence  becomes  the  criterion  of  their  happiness.  It 
happened,  you  know,  Sir,  that  the  great  contests  for  freedom  in  this  country  were  from 
the  earliest  times  chiefly  upon  the  question  of  taxing.  Most  of  the  contests  in  the 
ancient  commonwealths  turned  primarily  on  the  right  of  election  of  magistrates  ;  or  on 
the  balance  among  the  several  orders  of  the  state.  The  question  of  money  was  not 
with  them  so  immediate.  But  in  England  it  was  otherwise.  On  this  point  of  taxes 
the  ablest  pens  and  most  eloquent  tongues  have  been  exercised,  the  greatest  spirits 
have  acted  and  suffered.  In  order  to  give  the  fullest  satisfaction  concerning  the  im- 
portance of  this  point,  it  was  not  only  necessary  for  those  who  in  argument  defended 
the  excellence  of  the  English  constitution  to  insist  on  this  privilege  of  granting  monc}' 
as  a  dry  point  of  fact,  and  to  prove  that  the  right  had  been  acknowledged  in  ancient 
parchments  and  blind  usages,  to  reside  in  a  certain  body  called  the  House  of  Commons. 
They  went  much  further ;  they  attempted  to  prove,  and  they  succeeded,  that  in  theory 
it  ought  to  be  so,  from  the  particular  nature  of  a  house  of  commons,  as  an  immediate 
representative  of  the  people,  whether  the  old  records  had  delivered  this  oracle  or  not. 
They  took  infinite  pains  to  inculcate,  as  a  fundamental  principle,  that  in  all  monarchies 
the  people  must  in  effect  themselves  mediately  or  immediately  possess  the  power  of 
granting  their  own  money,  or  no  shadow  of  liberty  could  subsist.  The  colonies  draw 
from  you,  as  with  their  life-blood,  these  ideas  and  principles.  Their  love  of  liberty,  as 
with  you,  fixed  and  attached  on  this  specific  point  of  taxing.  Liberty  might  be  safe, 
or  might  be  endangered  in  twenty  other  particulars,  without  their  being  much  pleased 
or  alarmed.  Here  they  felt  its  pulse ;  and  as  they  found  that  beat,  they  thought  them- 
selves sick  or  sound.  I  do  not  say  whether  they  were  right  or  wrong  in  applying  your 
general  arguments  to  their  own  case.  It  is  not  easy  indeed  to  make  a  monopoly  of 
theorems  and  corollaries.  The  fact  is,  that  they  did  thus  apply  those  general  argu- 
ments ;  and  your  mode  of  governing  them,  whether  through  lenity  or  indolence, 
through  wi^om  or  mistake,  confirmed  them  in  the  imagination,  that  they,  as  well  as 
you,  had  an  interest  in  these  common  principles. 

"  They  were  further  confirmed  in  this  pleasing  error  by  the  form  of  their  provincial 
legislative  assemblies.  Their  governments  are  popular  in  an  high  degree ;  some  are 
merely  popular  ;  in  all,  the  popular  representative  is  the  most  weighty  ;  and  this  share 
of  the  people  in  their  ordinary  government  never  fails  to  inspire  them  with  lofty  senti- 
ments, and  with  a  strong  aversion  from  whatever  tends  to  deprive  them  of  their  chief 
importance. 

"  If  anything  were  wanting  to  this  necessary  operation  of  the  form  of  government, 
religion  would  have  given  it  a  complete  efiect.  Keligion,  always  a  principle  of  energy, 
in  this  new  people,  is  no  way  worn  out  or  impaired ;  and  their  mode  of  professing  it  is 


118  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

of  the  declaratory  act,  and  as  justly  including  the  power  of  taxa- 
tion.i    But  he  deemed  the  power  of  taxation  in  Parliament  as  an 

also  one  main  cause  of  this  free  spirit.  The  people  are  Protestants ;  and  of  that  kind 
which  is  the  most  adverse  to  all  implicit  submission  of  mind  and  opinion.  This  is  a 
persuasion  not  only  favorable  to  liberty,  but  built  upon  it.  I  do  not  think,  Sir,  that  the 
reason  of  this-  averseness  in  the  dissenting  churches  from  all  that  looks  like  absolute 
government  is  so  much  to  be  sought  in  their  religious  tenets,  as  in  their  history.  Every 
one  knows  that  the  Roman  Catholic  religion  is  at  least  coeval  with  most  of  the  govern- 
ments where  it  prevails ;  that  it  has  generally  gone  hand  in  hand  with  them ;  and 
received  great  favor  and  every  kind  of  support  from  authority.  The  Church  of  Eng- 
land, too,  was  formed  from  her  cradle  under  the  nursing  care  of  regular  government. 
But  the  dissenting  interests  have  sprung  up  in  direct  opposition  to  all  the  ordinary 
powers  of  the  world,  and  could  justify  that  opposition  only  on  a  strong  claim  to 
natural  liberty.  Their  very  existence  depended  on  the  powerful  and  unremitted  asser- 
tion of  that  claim.  All  Protestantism,  even  the  most  cold  and  passive,  is  a  sort  of 
dissent.  But  the  religion  most  prevalent  in  our  Northern  colonies  is  a  refinement  on  the 
principle  of  resistance ;  it  is  the  diffidence  of  dissent ;  and  the  Protestantism  of  the  Prot- 
estant religion.  This  religion,  under  a  variety  of  denominations,  agreeing  in  nothing 
but  in  the  communion  of  the  spirit  of  liberty,  is  predominant  in  most  of  the  Northern 
provinces ;  where  the  Church  of  England,  notwithstanding  its  legal  rights,  is  in  reality 
no  more  than  a  sort  of  private  sect,  not  composing  most  probably  the  tenth  of  the 
people.  The  colonists  left  England  when  this  spirit  was  high,  and  in  the  emigrants 
was  the  highest  of  all :  and  even  that  stream  of  foreigners,  which  has  been  constantly 
flowing  into  these  colonies,  has,  for  the  greatest  part,  been  composed  of  dissenters  from 
the  establishments  of  their  several  countries,  and  have  brought  with  them  a  temper  and 
character  far  from  alien  to  that  of  the  people  with  whom  they  mixed. 

"  Sir,  I  can  perceive  by  their  manner,  that  some  gentlemen  object  to  the  latitude  of 
this  description,  because  in  the  Southern  colonies  the  Church  of  England  forms  a  large 
body,  and  has  a  regular  establishment.  It  is  certainly  true.  There  is,  however,  a  cir- 
cumstance attending  these  colonies,  which,  in  my  opinion,  fully  counterbalances  this 
diflference,  and  makes  the  spirit  of  liberty  still  more  high  and  haughty  than  in  those  of 
the  northward.  It  is  that  in  Virginia  and  the  Carolinas  they  have  a  vast  multitude  of 
slaves.  Where  this  is  the  case  in  any  part  of  the  world,  those  who  are  free  are  by  far 
the  most  proud  and  jealous  of  their  freedom.  Freedom  is  to  them  not  only  an  enjoy- 
ment, but  a  kind  of  rank  and  privilege.  Not  seeing  there  that  freedom,  as  in  countries 
where  it  is  a  common  blessing,  and  as  broad  and  general  as  the  air,  may  be  united 
with  much  abject  toil,  with  great  misery,  with  all  the  exterior  of  servitude,  liberty  looks 
amongst  them  like  something  that  is  more  noble  and  liberal.  I  do  not  mean.  Sir,  to 
commend  the  superior  morality  of  this  sentiment,  which  has  at  least  as  much  pride  as 
virtue  in  it ;  but  I  cannot  alter  the  nature  of  man.  The  fact  is  so  ;  and  these  people  of 
the  Southern  colonies  are  much  more  strongly,  and  with  an  higher  and  more  stubborn 
spirit,  attached  to  liberty,  than  those  to  the  northward.  Such  were  all  the  ancient  com- 
monwealths ;  such  were  our  Gothic  ancestors ;  such  in  our  days  were  the  Poles ;  and 
such  will  be  all  masters  of  slaves,  who  are  not  slaves  themselves.  In  such  a  people  the 
haughtiness  of  domination  combines  with  the  spirit  of  freedom,  fortifies  it,  and  renders 
it  invincible. 

"Permit  me.  Sir,  to  add  another  circumstahce  in  our  colonies,  which  contributes  no 
mean  part  towards  the  growth  and  eflFect  of  this  untractable  spirit.     I  mean  their  educa- 

1  Burke's  Speech  on  Taxation  of  America  in  1774 ;  Burke's  Speech  on  Conciliation 
with  America,  22  March,  1775.     See  also  his  Letters  to  the  SheriflFs  of  Bristol,  in  1777. 


CH.  XVII.]  GENERAL  REVIEW.  119 

instrument  of  empire,  and  not  as  a  means  of  supply ;  and  there- 
fore that  it  should  be  resorted  to  only  in  extreme  cases  for  the 

tion.  In  no  country  perhaps  in  the  world  is  the  law  so  general  a  study.  The  profes- 
sion itself  is  numerous  and  powerful,  and  in  most  provinces  it  takes  the  lead.  The 
greater  number  of  the  deputies  sent  to  Congress  were  lawyers.  But  all  who  read  —  and 
most  do  read  —  endeavor  to  obtain  some  smattering  in  that  science.  I  have  been  told  by 
an  eminent  bookseller,  that  in  no  branch  of  his  business,  after  tracts  of  popular  devo- 
tion, were  so  many  books  as  those  on  the  law  exported  to  the  plantations.  The  col- 
onists have  now  fallen  into  the  way  of  printing  them  for  their  own  use.  I  hear  that 
they  have  sold  nearly  as  many  of  Blackstone's  Commentaries  in  America  as  in  Eng- 
land. General  Gage  marks  out  this  disposition  very  particularly  in  a  letter  on  your 
table.  He  states  that  all  the  people  in  his  government  are  lawyers,  or  smatterers  in 
law ;  and  that  in  Boston  they  have  been  enabled,  by  successful  chicane,  wholly  to 
evade  many  parts  of  one  of  your  capital  penal  constitutions.  The  smartness  of  debate 
will  say  that  this  knowledge  ought  to  teach  them  more  clearly  the  rights  of  legislature, 
their  obligations  to  obedience,  and  the  penalties  of  rebellion.  All  this  is  mighty  well. 
But  my  honorable  and  learned  friend  [the  Attorney-General]  on  the  floor,  who  conde- 
scends to  mark  what  I  say  for  animadversion,  will  disdain  that  ground.  He  has  heard, 
as  well  as  I,  that  when  great  honors  and  great  emoluments  do  not  win  over  this  knowl- 
edge to  the  service  of  the  state,  it  is  a  formidable  adversary  to  government.  If  the  spirit 
be  not  tamed  and  broken  by  these  happy  methods,  it  is  stubborn  and  litigious.  Abeunt 
studia  in  mores.  This  study  renders  men  acute,  inquisitive,  dexterous,  prompt  in  attack, 
ready  in  defence,  full  of  resources.  In  other  countries,  the  people,  more  simple  and  of 
a  less  mercurial  cast,  judge  of  an  ill  principle  in  government  only  by  an  actual  griev- 
ance ;  here  they  anticipate  the  evil,  and  judge  of  the  pressure  of  the  grievance  by  the 
badness  of  the  principle.  They  augur  misgovernment  at  a  distance,  and  snufF  the  ap- 
proach of  tyranny  in  every  tainted  breeze. 

"  The  last  cause  of  this  disobedient  spirit  in  the  colonies  is  hardly  less  powerful  than 
the  rest,  as  it  is  not  merely  moral,  but  laid  deep  in  the  natural  constitution  of  things. 
Three  thousand  miles  of  ocean  lie  between  you  and  them.  No  contrivance  can  prevent 
the  effect  of  this  distance  in  weakening  government.  Seas  roll,  and  months  pass, 
between  the  order  and  the  execution ;  and  the  want  of  a  speedy  explanation  of  a  single 
point  is  enough  to  defeat  a  whole  system.  You  have,  indeed,  winged  ministers  of  ven- 
geance, who  carry  your  bolts  in  their  pounces  to  the  remotest  verge  of  the  sea.  But 
there  a  power  steps  in,  that  limits  the  arrogance  of  raging  passions  and  furious  elements, 
and  says,  *  So  far  shalt  thou  go,  and  no  farther.'  Who  are  you,  that  should  fret  and 
rage,  and  bite  the  chains  of  nature  ?  Nothing  worse  happens  to  you  than  does  to  all 
nations  who  have  extensive  empire  ;  and  it  happens  in  all  the  forms  into  which  empire 
can  be  thrown.  In  large  bodies  the  circulation  of  power  must  be  less  vigorous  at  the 
extremities.  Nature  has  said  it.  The  Turk  cannot  govern  Egypt  and  Arabia  and 
Curdistan  as  he  governs  Thrace  ;  nor  has  he  the  same  dominion  in  Crimea  and  Algiers 
which  he  has  at  Brusa  and  Smyrna.  Despotism  itself  is  obliged  to  truck  and  huckster. 
The  Sultan  gets  such  obedience  as  he  can.  He  governs  with  a  loose  rein,  that  he  may 
govern  at  all ;  and  the  whole  of  the  force  and  vigor  of  his  authority  in  his  centre,  is 
derived  from  a  prudent  relaxation  in  all  his  borders.  Spain,  in  her  provinces,  is,  per- 
haps, not  so  well  obeyed  as  you  are  in  yours.  She  complies  too ;  she  submits ;  she 
watches  times.  This  is  the  immutable  condition,  the  eternal  law,  of  extensive  and 
detached  empire. 

"  Then,  Sir,  from  these  six  capital  sources,  —  of  descent ;  of  form  of  government ;  of 
religion  in  the  Northern  provinces  ;  of  manners  in  the  Southern ;  of  education ;  of  the 


120  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

former  purposes.  With  a  view  to  conciliation,  another  act  was 
passed  at  a  late  period,  (in  18  Geo.  3,  ch.  12,)  which  declared 
that  Parliament  would  not  impose  any  duty  or  tax  on  the  colonies, 
except  for  the  regulation  of  commerce  ;  and  that  the  net  produce 
of  such  duty,  or  tax,  should  be  applied  to  the  use  of  the  colony  in 
which  it  was  levied.  But  it  failed  of  its  object.  The  spirit  of 
resistance  had  then  become  stubborn  and  uncontrollable.  The 
colonists  were  awake  to  a  full  sense  of  all  their  rights,  and  habit 
had  made  them  firm,  and  common  sufferings  had  made  them 
acute,  as  well  as  indignant  in  the  vindication  of  their  privileges. 
And  thus  the  struggle  was  maintained  on  each  side  with  unabated 
zeal,  until  the  American  Revolution.  The  Declaration  of  Inde- 
pendence embodied  in  a  permanent  form  a  denial  of  such  parlia- 
mentary authority,  treating  it  as  a  gross  and  unconstitutional 
usurpation. 

§  171.  The  colonial  legislatures,  with  the  restrictions  necessa- 
rily arising  from  their  dependency  on  Great  Britain,  were  sover- 
eign within  the  limits  of  their  respective  territories.  But  there 
was  this  difference  among  them,  that  in  Maryland,  Connecticut, 
and  Rhode  Island  the  laws  were  not  required  to  be  sent  to  the 
king  for  his  approval ;  whereas,  in  all  the  other  colonies  the  king 
possessed  the  power  of  abrogating  them,  and  they  were  not  final 
in  their  authority  until  they  had  passed  under  his  review.^  In 
respect  to  the  mode  of  enacting  laws,  there  were  some  differences 
in  the  organization  of  the  colonial  governments.^  In  Connecticut 
and  Rhode  Island  the  governor  had  no  negative  upon  the  laws ; 
in  Pennsylvania  the  council  had  no  negative,  but  was  merely  advi- 
sory to  the  executive  ;  in  Massachusetts  the  council  was  chosen 
by  the  legislature,  and  not  by  the  crown,  but  the  governor  had  a 
negative  on  the  choice. 

§  172.  (3.)  In  all  the  colonies  the  lands  within  their  limits 
were  by  the  very  terms  of  their  original  grants  and  charters  to  be 
holden  of  the  crown  in  free  and  common  socage,  and  not  in  capite, 

remoteness  of  situation  from  the  first  mover  of  government,  —  from  all  these  causes  a 
fierce  spirit  of  liberty  has  grown  up.  It  has  grown  with  the  growth  of  the  people  in 
your  colonies,  and  increased  with  the  increase  of  their  wealth ;  a  spirit,  that  unhappily 
meeting  with  an  exercise  of  power  in  England,  wjiich,  however  lawful,  is  not  reconcil- 
able to  any  ideas  of  liberty,  much  less  with  theirs,  has  kindled  this  flame,  that  is  ready 
to  consume  us."    2  Burke's  Works,  38-45. 

1  1  Chambers's  Annals,  203,  295  ;  1  Doug.  Summ.  207,  208. 

2  1  Doug.  Summ.  215. 


CH.  XVII.]  GENERAL  REVIEW.  121 

or  by  knights'  service.  They  were  all  holden  either  as  of  the 
manor  of  East  Greenwich  in  Kent,  or  of  the  manor  of  Hampton 
Court  in  Middlesex,  or  of  the  castle  of  Windsor  in  Berkshire.^ 
All  the  slavish  and  military  part  of  the  ancient  feudal  tenures  was 
thus  effectually  prevented  from  taking  root  in  the  American  soil ; 
and  the  colonists  escaped  from  the  oppressive  burdens,  which  for 
a  long  time  affected  the  parent  country,  and  were  not  abolished 
until  after  the  restoration  of  Charles  the  Second.^  Our  tenures 
thus  acquired  a  universal  simplicity ;  and  it  is  believed  that  none 
but  freehold  tenures  in  socage  ever  were  in  use  among  us.  No 
traces  are  to  be  found  of  copyhold,  or  gavelkind,  or  burgage  ten- 
ures. In  short,  for  most  purposes,  our  lands  may  be  deemed  to 
be  perfectly  allodial,  or  held  of  no  superior  at  all,  though  many 
of  the  distinctions  of  the  feudal  law  have  necessarily  insinuated 
themselves  into  the  modes  of  acquiring,  transferring,  and  trans- 
mitting real  estates.  One  of  the  most  remarkable  circumstances 
in  our  colonial  history  is  the  almost  total  absence  of  leasehold 
estates.  The  erection  of  manors,  with  all  their  attendant  privi- 
leges, was,  indeed,  provided  for  in  several  of  the  charters.  But  it 
was  so  little  congenial  with  the  feelings,  the  wants,  or  the  inter- 
ests of  the  people,  that  after  their  erection  they  gradually  fell  into 
desuetude  ;  and  the  few  remaining  in  our  day  are  but  shadows  of 
the  past,  the  relics  of  faded  grandeur  in  the  last  steps  of  decay, 
enjoying  no  privileges,  and  conferring  no  power. 

§  173.  In  fact,  partly  from  the  cheapness  of  land,  and  partly 
from  an  innate  love  of  independence,  few  agricultural  estates  in 
the  whole  country  have  at  any  time  been  held  on  lease  for  a  stip- 
ulated rent.  The  tenants  and  occupiers  are  almost  universally 
the  proprietors  of  the  soil  in  fee-simple.  The  estates  of  a  more 
limited  duration  are  principally  those  arising  from  the  acts  of  the 
law,  such  as  estates  in  dower  and  in  curtesy.  Strictly  speaking, 
therefore,  there  has  never  been  in  this  country  a  dependent  peas- 
antry. The  yeomanry  are  absolute  owners  of  the  soil  on  which 
they  tread,  and  their  character  has  from  this  circumstance  been 
marked  by  a  more  jealous  watchfulness  of  their  rights,  and  by  a 
more  steady  spirit  of  resistance  against  every  encroachment,  than 
can  be  found  among  any  other  people,  whose  habits  and  pursuits 
are  less  homogeneous  and  independent,  less  influenced  by  personal 
choice,  and  more  controlled  by  political  circumstances. 

1  1  Grahame's  Hist.  43,  44.  2  gtat.  12  Car.  2,  ch.  24. 


122  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

§  174.  (4.)  Connected  with  this  state  of  things,  and,  indeed, 
as  a  natural  consequence  flowing  from  it,  is  the  simplicity  of  the 
system  of  conveyances,  by  which  the  titles  to  estates  are  passed, 
and  the  notoriety  of  the  transfers  made.  From  a  very  early 
period  of  their  settlement  the  colonies  adopted  an  almost  uni- 
form mode  of  conveyance  of  land,  at  once  simple  and  practicable 
and  safe.  The  differences  are  so  slight  that  they  became  almost 
evanescent.  All  lands  were  conveyed  by  a  deed,  commonly  in 
the  form  of  a  feoffment,  or  a  bargain  and  sale,  or  a  lease  and  re- 
lease, attested  by  one  or  more  witnesses,  acknowledged  or  proved 
before  some  court  or  magistrate,  and  then  registered  in  some  pub- 
lic registry.  When  so  executed,  acknowledged,  and  recorded,  it 
had  full  efifect  to  convey  the  estate  without  any  livery  of  seisin,  or 
any  other  act  or  ceremony  whatsoever.  This  mode  of  conveyance 
prevailed,  if  not  in  all,  in  nearly  all  the  colonies  from  a  very  early 
period,  and  it  has  now  become  absolutely  universal.  It  is  hardly 
possible  to  measure  the  beneficial  influences  upon  our  titles  arising 
from  this  source,  in  point  of  security,  facility  of  transfer,  and 
marketable  value. 

§  175.  (5.)  All  the  colonies  considered  themselves,  not  as  par- 
cel of  tlie  realm  of  Great  Britain,  but  as  dependencies  of  the  British 
crown,  and  owing  allegiance  thereto,  the  king  being  their  supreme 
and  sovereign  lord.^  In  virtue  of  its  general  superintendency,  the 
crown  constantly  claimed  and  exercised  the  right  of  entertaining 
appeals  from  the  courts  of  the  last  resort  in  the  colonies ;  and 
these  appeals  were  heard  and  finally  adjudged  by  the  king  in 
council.2  This  right  of  appeal  was  secured  by  express  reservation 
in  most  of  the  colonial  charters.  It  was  expressly  provided  for 
by  an  early  provincial  law  in  New  Hampshire,  when  the  matter  in 
difierence  exceeded  the  true  value  or  sum  of  .£  300  sterling.  So, 
a  like  colonial  law  of  Rhode  Island  was  enacted  by  its  local  legis- 
lature in  1719.^  It  was  treated  by  the  crown  as  an  inherent  right 
of  the  subject,  independent  of  any  such  reservation.*  And  so  in 
divers  cases  it  was  held  by  the  courts  of  England.  The  reasons 
given  for  the  opinion  that  writs  of  error  lie  to  all  the  dominions 

1  1  Vez.444;  Vaughan,  R.  300,  400;  Shower,  Pari.  Cases,  30,  31,  32,  33;  Mass. 
State  Papers,  359. 

2  1  Black.  Comm.  231,  232  ;  Chitty  on  Prerog.  29,  31. 

8  New  Hampshire  Prov.  Laws,  edit.  1771,  p.  7,  Act  of  11  Will.  3,  ch.  4 ;  Rhode  Isl- 
and Laws,  edit.  1744,  p.  78. 
*  1  P.  Will.  329 ;  Chitty  on  Prerog.  ch.  3. 


CH.  XVn.]  GENERAL  REVIEW.  123 

belonging  to  England  upon  the  ultimate  judgments  given  there, 
are,  (1.)  That,  otherwise,  the  law  appointed  or  permitted  to  such 
inferior  dominion  might  be  considerably  changed  without  the  as- 
sent of  the  superior  dominion ;  (2.)  Judgments  might  be  given 
to  the  disadvantage  or  lessening  of  the  superiority,  or  to  make  the 
superiority  of  the  king  only,  and  not  of  the  crown  of  England ; 
and,  (3.)  That  the  practice  has  been  accordingly .^ 

§  176.  Notwithstanding  the  clearness  with  which  this  appellate 
jurisdiction  was  asserted,  and  upheld  by  the  principles  of  the  com- 
mon law,  the  exercise  of  it  was  not  generally  assumed  until  about 
1680 ;  and  it  was  not  then  conceded  as  a  matter  of  right  in  all 
the  colonies.2  On  the  contrary,  Massachusetts  resisted  it  under 
her  first  charter  (the  right  of  appeal  was  expressly  reserved  in 
that  of  1691) ;  and  Rhode  Island  and  Connecticut  at  first  denied 
it,  as  inconsistent  with,  or  rather  as  not  provided  for,  in  theirs.^ 
Rhode  Island  soon  after  surrendered  her  opposition.*  But  Con- 
necticut continued  it  to  a  later  period.^  In  a  practical  sense,  how- 
ever, the  appellate  jurisdiction  of  the  king  in  council  was  in  full 
and  undisturbed  exercise  throughout  the  colonies  at  the  time  of  the 
American  Revolution  ;  and  was  deemed  rather  a  protection  than  a 
grievance.^ 

§  177.  (6.)  Though  the  colonies  had  a  common  origin,  and 
owed  a  common  allegiance,  and  the  inhabitants  of  each  were 

1  Vaughan's  Rep.  290,  402 ;  Show.  Pari.  Cases,  30,  31,  32,  33 ;  1  Vez.  444  ;  Stoke8*8 
Colon.  26,  222,  231  ;  2  Ld.  Rayra.  1447,  1448  ;  1  Chalm.  Annals,  139,  304,  671,  678, 
684 ;  Christian  v.  Corver,  1  P.  Will.  R.  329  ;  Att.  Gen.  v.  Stewart,  2  Merivale,  R.  143, 
156  ;  Rex  v.  Cowle,  2  Burr.  834,  852,  854,  856  ;  Fabrigas  v.  Mostyn,  Cowp.  174  ;  1  Doug. 
Summ.  216  ;  3  Wilson's  Works,  230 ;  2  Chalra.  Opin.  177,  222. 

2  Chitty  on  Prerog.  ch.  3,  p.  28,  29;  1  Chalm.  Opin.  222;  1  Pitk.  Hist.  121,  123, 
124,  125,  126;  1  Chalm.  Annals,  139,  140,  678;  5  Mass.  Hist.  Coll.  139. 

8  1  Chalm.  Annals,  277,  280,  297,  304,  411,  446,  462  ;  2  Doug.  Summ.  174;  Hutch. 
Coll.  330,  418,  529  ;  2  Hutch.  Hist.  539. 

*  2  Doug.  Summ.  97 ;  3  Hutch.  Coll.  412,  413. 

5  2  Doug.  Summ.  194;  1  Pitk.  Hist.  123  to  125. 

^  I  have  in  my  possession  a  printed  case,  Thomas  Forsley  v.  Warddd  Cunningham, 
brought  before  the  governor  and  council  of  New  York  from  the  supreme  court  of  that 
province,  by  appeal,  in  1764.  The  great  question  was,  whether  an  appeal  or  writ  of  error 
lay ;  and  the  judges  of  the  supreme  court,  and  the  council  held,  that  no  appeal  lay, 
for  that  would  be  to  re-examine  facts  settled  by  the  verdict  of  a  jury.  The  lieutenant- 
governor  dissented.  It  was  agreed  on  all  sides,  jthat  an  appeal  in  matter  of  law  (by 
way  of  writ  of  error)  lay  to  the  king  in  council  from  all  judgments  in  the  colonies  ;  but 
not  as  to  matters  of  fact  in  suits  at  common  law.  It  was  also  held,  that  in  all  the 
colonies  the  subjects  carry  with  them  the  laws  of  England,  and  therefore  as  well  those 
which  took  place  after  as  those  which  were  in  force  before  Magna  Charta. 


124  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

British  subjects,  they  had  no  direct  political  connection  with  each 
other.  Each  was  independent  of  all  the  others ;  each,  in  a  limited 
sense,  was  sovereign  within  its  own  territorj-.  There  was  neither 
alliance  nor  confederacy  between  them.  The  assembly  of  one 
province  could  not  make  laws  for  another ;  nor  confer  privileges, 
which  were  to  be  enjoyed  or  exercised  in  another,  further  than 
they  could  be  in  any  independent  foreign  state.  As  colonies, 
they  were  also  excluded  from  all  connections  with  foreign  states. 
They  were  known  only  as  dependencies ;  and  they  followed  the 
fate  of  the  parent  country  both  in  peace  and  war,  without  having 
assigned  to  them,  in  the  intercourse  or  diplomacy  of  nations,  any 
distinct  or  independent  existence.^  They  did  not  possess  the 
power  of  forming  any  league  or  treaty  among  themselves  which 
should  acquire  an  obligatory  force  without  the  assent  of  the  parent 
state.  And  though  their  mutual  wants  and  necessities  often  in- 
duced them  to  associate  for  common  purposes  of  defence,  these 
confederacies  were  of  a  casual  and  temporary  nature,  and  were 
allowed  as  an  indulgence  rather  than  a  right.  They  made  several 
efforts  to  procure  the  establishment  of  some  general  superintend- 
ing government  over  them  all ;  but  their  own  differences  of  opinion, 
as  well  as  the  jealousy  of  the  crown,  made  these  efforts  abortive.^ 
These  efforts,  however,  prepared  their  minds  for  the  gradual  recon- 
ciliation of  their  local  interests,  and  for  the  gradual  development 
of  the  principles  upon  which  a  union  ought  to  rest,  rather  than 
brought  on  an  immediate  sense  of  the  necessity  or  the  blessings 
of  such  a  general  government. 

§  178.  But  although  the  colonies  were  independent  of  each  other 
in  respect  to  their  domestic  concerns,  they  were  not  wholly  alien 
to  each  other.  On  the  contrary,  they  were  fellow-subjects,  and  for 
many  purposes  one  people.  Every  colonist  had  a  right  to  inhabit, 
if  he  pleased,  in  any  other  colony ;  and  as  a  British  subject,  he 
was  capable  of  inheriting  lands  by  descent  in  every  other  colony. 
The  commercial  intercourse  of  the  colonies,  too,  was  regulated  by 
the  general  laws  of  the  British  Empire,  and  could  not  be  re- 
strained or  obstructed  by  colonial  legislation.  The  remarks  of 
Mr.  Chief  Justice  Jay  on  this  subject  are  equally  just  and  striking. 
"  All  the  people  of  this  country  were  then  subjects  of  the  king  of 

1  1  Chalm.  Annals,  686,  689,  690. 

2  1  Pitk.  Hist.  50,  141,  142,  143,  144,  145,  146,  429;  2  Haz.  Coll. ;  1  Marsh.  Colon, 
ch.  10,  p.  284;  3  Hutch.  Hist.  21,  22,  23. 


CH.  XVII.]  GENERAL  REVIEW.  125 

Great  Britain,  and  owed  allegiance  to  him ;  and  all  the  civil 
authority  then  existing,  or  exercised  here,  flowed  from  the  head  of 
the  British  Empire.  They  were,  in  a  strict  sense,  fellow-8uh]ects, 
and  in  a  variety  of  respects  one  people.  When  the  Revolution  com- 
menced, the  patriots  did  not  assert  that  only  the  same  affinity  and 
social  connection  subsisted  between  the  people  of  the  colonies  which 
subsisted  between  the  people  of  Gaul,  Britain,  and  Spain,  while 
Roman  provinces,  to  wit,  only  that  affinity  and  social  connection 
■which  result  from  the  mere  circumstance  of  being  governed  by  the 
same  prince.  Different  ideas  prevailed,  and  gave  occasion  to  the 
Congress  of  1774  and  1775."  i 

1  Chisholm  V.  State  of  Georgia,  2  Dall.  470.  [It  is  plaia  that  the  several  American 
States  were  never  fully  and  in  all  respects,  as  regards  each  other,  independent  States,  as 
that  term  is  applied  in  the  law  of  nations.  On  the  contrary,  the  learned  author  takes 
pains  to  point  out  that  our  present  government  is  the  successor,  with  modified  powers, 
of  that  which  formerly  possessed  authority  over  them  all.  Prior  to  the  Revolution, 
certain  powers  of  government  were  exercised  over  all  the  colonies,  either  as  pertaining 
to  the  crown  of  Great  Britain  or  the  Parliament ;  hut  the  rightful  extent  of  those  pow- 
ers and  how  far  possessed  hy  the  Parliament,  and  how  far  resting  in  the  crown,  were  the 
questions  in  dispute  which  led  to  the  Revolution.  That  the  home  government  possessed 
authority  over  the  subjects  of  peace  and  war,  and  had  the  general  direction  of  commer- 
cial intercourse  with  other  nations,  was  often  formally  conceded  by  the  colonies.  And 
the  disputes  between  them  and  the  home  government  related  principally  to  other  mat- 
ters Avhich  the  colonists  insisted  were  within  the  exclusive  control  of  the  local  legisla- 
tures. 

The  tendency  among  the  colonists  to  establish  a  more  intimate  and  voluntary  union 
among  themselves  might  form  the  subject  of  one  of  the  most  interesting  chapters  in 
American  history.  The  New  England  Confederacy  of  1643,  the  temporary  Congress 
of  1690,  the  plan  of  Union  agreed  upon  in  the  Convention  of  1754,  the  Stamp  Act 
Congress  of  1765,  and  finally  the  Continental  Congress  of  1774,  were  all  the  offspring 
of  a  desire  among  the  scattered  colonies  of  Great  Britain  in  America  to  strengthen  and 
extend  the  common  ties  for  their  mutual  safety  and  protection.  To  all  this  the  jealousy 
of  the  home  government  constituted  a  serious  impediment,  but  the  difficulty  in  reaching 
an  arrangement  as  to  the  proper  measure  of  authority  to  be  conceded  to  any  proposed 
confederacy  or  congress,  was  an  obstacle  still  more  serious.  The  history  of  the  Convention 
of  1754  is  particularly  instructive.  See  Mr.  Everett  upon  its  work,  N.  A.  Rev.,  Vol. 
XXXVIII.  p.  73,  et  seq.  At  last  the  colonies,  by  formal  declaration,  threw  off  allegiance 
to  the  crown  ;  but  even  then  they  did  not  cease  to  have  a  common  national  head,  for  it 
was  through  the  revolutionary  Congress  that  independence  was  declared,  and  that  body 
had  already,  by  common  consent,  taken  upon  itself  those  powers  of  external  control 
which  before  had  been  conceded  to  the  crown  or  the  Parliament,  together  with  such 
others  as  the  emergency  seemed  to  call  for.  Those  powers  being  undefined,  the  Con- 
gress as  a  national  authority  could  answer  a  temporary  purpose  only,  but  what  was 
done  thereafter,  in  establishing  the  Articles  of  Confederation,  and  then  in  substituting 
for  these  the  work  of  the  Convention  of  1787,  was  not  for  the  purpose  of  creating  for 
the  first  time  a  common  authority  for  States  before  wholly  independent  of  each  other, 
but  was  done  by  way  of  modifying,  defining,  strengthening,  and  rendering  more  efficient 


126  raSTOBY  OF  THE   COLONIES.  [BOOK  I. 

§  179.  Having  considered  some  of  the  particulars  in  which  the 
political  organization  and  public  rights  and  juridical  policy  of  the 
colonies  were  nearly  similar,  it  remains  to  notice  a  few  in  which 
there  were  important  differences. 

(1.)  As  to  the  course  of  descents  and  distribution  of  intestate 
estates.  And  here  the  policy  of  different  colonies  was  in  a  great 
measure  determined  by  the  nature  of  their  original  governments 
and  local  positions.  All  the  Southern  colonies,  including  Virginia, 
adhered  to  the  course  of  descents  at  the  common  law  (as  we  have 
had  occasion  to  see)  down  to  the  American  Revolution.  As  a  nat- 
ural consequence,  real  property  was  in  these  colonies  generally  held 
in  large  masses  by  the  families  of  ancient  proprietors ;  the  younger 
branches  were  in  a  great  measure  dependent  upon  the  eldest ;  and 
the  latter  assumed  and  supported  somewhat  of  the  pre-eminence 
which  belonged  to  baronial  possessions  in  the  parent  country. 
Virginia  was  so  tenacious  of  entails,  that  she  would  not  even  endure 
the  •barring  of  them  by  the  common  means  of  fines  and  recoveries. 
New  York  and  New  Jersey  silently  adhered  to  the  English  rule  of 
descents  under  the  government  of  the  crown,  as  royal  provinces. 
On  the  other  hand,  all  New  England,  with  the  exception  of  Rhode 
Island,  from  a  very  early  period  of  their  settlements,  adopted  the 
rule  of  dividing  the  inheritance  equally  among  all  the  children, 
and  other  next  of  kin,  giving  a  double  share  to  the  eldest  son. 
Maryland,  after  1715,  and  Pennsylvania  almost  from  its  settlement, 
in  like  manner  distributed  the  inheritance  among  all  the  children 
and  other  next  of  kin.  New  Hampshire,  although  a  royal  prov- 
ince, steadily  clung  to  the  system  of  Massachusetts,  which  she 
had  received  when  she  formed  an  integral  part  of  the  latter.  But 
Rhode  Island  retained  (as  we  have  already  seen)  its  attachment 
to  the  common-law  rule  of  descents  down  almost  to  the  era  of  the 
American  Revolution.^ 

and  enduring  an  existing  authority,  through  which  alone  they  were  known  in  the  family 
of  nations. 

"  The  Union,"  it  is  said  in  the  inaugural  address  of  President  Lincoln,  "  is  much 
older  than  the  Constitution.  It  was  formed  in  fact  by  the  Articles  of  Association  of 
1774.  It  was  matured  and  continued  by  the  Declaration  of  Independence  of  1776.  It 
was  further  matured,  and  the  faith  of  all  the  then  thirteen  States  expressly  plighted  and 
engaged  that  it  should  be  perpetual  by  the  Articles  of  Confederation  in  1778,  and 
finally,  in  1787,  one  of  the  declared  objects  in  ordaining  and  establishing  the  Constitu- 
tion was  *  to  form  a  more  perfect  Union.*  " 

For  a  brief  account  of  the  Colonial  Confederacies,  the  reader  is  referred  to  Mr. 
Towle's  Analysis  of  the  Constitution,  p.  298,  et  seq.] 

1  To  1770,  Gardner  v.  Collins,  2  Peters's  Sup.  Ct.  R.  58. 


CH.  XVn.]  GENERAL  REVIEW.  127 

§  180.  In  all  the  colonies,  where  the  rule  of  partible  inheritance 
prevailed,  estates  were  soon  parcelled  out  into  moderate  planta- 
tions and  farms  ;  and  the  general  equality  of  property  introduced 
habits  of  industry  and  economy,  the  effects  of  which  are  still 
visible  in  their  local  customs,  institutions,  and  public  policy.  The 
philosophical  mind  can  scarcely  fail  to  trace  the  intimate  connec- 
tion which  naturally  subsists  between  the  general  equality  of  the 
apportionment  of  property  among  the  mass  of  a  nation  and  the 
popular  form  of  its  government.  The  former  can  scarcely  fail, 
first  or  last,  to  introduce  the  substance  of  a  republic  into  the  actual 
administration  of  the  government,  though  its  forms  do  not  bear 
such  an  external  impress.  Our  Revolutionary  statesmen  were  not 
insensible  to  this  silent  but  potent  influence ;  and  the  fact,  that  at 
the  present  time  the  law  of  divisible  inheritances  pervades  the 
Union,  is  a  strong  proof  of  the  general  sense,  not  merely  of  its 
equity,  but  of  its  political  importance. 

§  181.  A  very  curious  question  was  at  one  time  ^  agitated  before 
the  king  in  council,  upon  an  appeal  from  Connecticut,  how  far  the 
statutes  of  descents  and  distributions,  dividing  the  estate  among 
all  the  children,  was  conformable  to  the  charter  of  that  colony, 
which  required  the  laws  to  be  "  not  contrary  to  the  laws  of  the 
realm  of  England.'*  It  was  upon  that  occasion  decided,  that  the 
law  of  descents,  giving  the  female  as  well  as  the  male  heirs  a 
part  of  the  real  estate,  was  repugnant  to  the  charter,  and  therefore 
void.  This  determination  created  great  alarm,  not  only  in  Con- 
necticut, but  elsewhere  ;  since  it  might  cut  deep  into  the  legislation 
of  the  other  colonies,  and  disturb  the  foundation  of  many  titles. 
Th€  decree  of  the  council,  annulling  the  law,  was  upon  the  urgent 
application  of  some  of  the  colonial  agents  revoked,  and  the  law 
reinstated  with  its  obligatory  force.^  At  a  still  later  period  the 
same  question  seems  to  have  been  presented  in  a  somewhat  differ- 
ent shape  for  the  consideration  of  the  law-officers  of  the  crown  ; 
and  it  may  now  be  gathered  as  the  rule  of  construction,  that  even 
in  a  colony,  to  which  the  benefit  of  the  laws  of  England  is  ex- 
pressly extended,  the  law  of  descents  of  England  is  not  to  be 
deemed  as  necessarily  in  force  there,  if  it  is  inapplicable  to  their 
situation  ;  or  at  least,  that  a  change  of  it  is  not  beyond  the  general 
competency  of  the  colonial  legislature. ^ 

1  In  1727.  «  1  Pitk.  Hist.  125,  126. 

8  Att.  Gen.  v.  Stewart,  2  Meriv.  R.  143,  157,  158,  159. 


128  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

§  182.  (2.)  Connected  with  this,  we  may  notice  the  strong  ten- 
dency of  the  colonies  to  make  lands  liable  to  the  payment  of  debts. 
In  some  of  them,  indeed,  the  English  rule  prevailed  of  making 
lands  liable  only  to  an  extent  upon  an  elegit.  But  in  by  far 'the 
greatest  number,  lands  were  liable  to  be  set  off  upon  appraisement, 
or  sold  for  the  payment  of  debts.  And  lands  were  also  assets,  in 
cases  of  a  deficiency  of  personal  property,  to  be  applied  in  the 
course  of  administration  to  discharge  the  debts  of  the  party  de- 
ceased. This  was  a  natural  result  of  the  condition  of  the  people 
in  a  new  country,  who  possessed  little  moneyed  capital,  whose 
wants  were  numerous,  and  whose  desire  of  credit  was  correspond- 
ently  great.  The  true  policy  in  such  a  state  of  things  was  to  make 
land,  in  some  degree,  a  substitute  for  money,  by  giving  it  all  the 
facilities  of  transfer,  and  all  the  prompt  applicability  of  personal 
property.  It  will  be  found  that  the  growth  of  the  respective  col- 
onies was  in  no  small  degree  affected  by  this  circumstance.  Com- 
plaints were  made,  and  perhaps  justly,  that  undue  priorities  in 
payment  of  debts  were  given  to  the  inhabitants  of  the  colony  over 
all  other  creditors ;  and  that  occasional  obstructions  were  thrown 
in  the  way  of  collecting  debts.^  But  the  evil  was  not  general  in 
its  operation ;  and  the  policy,  wherever  it  was  pursued,  retarded 
the  growth  and  stinted  the  means  of  the  settlements.  For  the 
purpose,  however,  of  giving  greater  security  to  creditors,  as  well 
as  for  a  more  easy  recovery  of  debts  due  in  the  plantations 
and  colonies  in  America,  the  statute  of  5  Geo.  2,  ch.  7  [1732], 
among  other  things  declared,  that  all  houses,  lands,  negroes,  and 
other  hereditaments  and  real  estates  in  the  plantations  should  be 
liable  to,  and  chargeable  with,  the  debts  of  the  proprietor,  and  be 
assets  for  the  satisfaction  thereof,  in  like  manner  as  real  estates 
are  by  the  law  of  England  liable  to  the  satisfaction  of  debts  due 
by  bond  or  other  specialty,  and  shall  be  subject  to  like  remedies  in 
courts  of  law  and  equity,  for  seizing,  extending,  selling,  and  dis- 
posing of  the  same,  toward  satisfaction  of  such  debts,  in  like  man- 
ner as  personal  estates  in  any  of  such  plantations  are  seized,  ex- 
tended, sold,  or  disposed  of,  for  satisfaction  of  debts.  This  act 
does  not  seem  to  have  been  resisted  on  the  part  of  any  of  the  col- 
onies to  whom  it  peculiarly  applied.^ 

§  183.   In  respect  to  the  political  relations  of  the  colonies  with 

1  1  Chalm.  Annals,  692,  693. 

2  Telfair  v.  Stead,  2  Cranch,  407. 


CH.  XVII.]  GENERAL  REVIEW.  129 

the  parent  country,  it  is  not  easy  to  state  the  exact  limits  of  the 
dependency  which  was  admitted,  and  the  extent  of  sovereignty 
which  might  be  lawfully  exercised  over  them,  either  by  the  crown 
or  by  Parliament.  In  regard  to  the  crown,  all  of  the  colonies  ad- 
mitted that  they  owed  allegiance  to  the  king,  as  their  sovereign 
liege  lord,  though  the  nature  of  the  powers  which  he  might  exer- 
cise, as  sovereign,  were  still  undefined.^ 

§  184.  In  the  silence  of  express  declarations  we  may  resort  to 
the  doctrines  maintained  by  the  crown- writers,  as  furnishing,  if 
not  an  exact,  at  least  a  comprehensive  view  of  the  claims  of  the 
royal  prerogative  over  the  colonial  establishments.  They  consid- 
ered it  not  necessary  to  maintain  that  all  the  royal  prerogatives 
exercisable  in  England  were  of  course  exercisable  in  the  colonies, 
but  only  such  fundamental  rights  and  principles  as  constituted 
the  basis  of  the  throne  and  its  authority,  and  without  which  the 
king  would  cease  to  be  sovereign  in  all  his  dominions.  Hence  the 
attributes  of  sovereignty,  perfection,  perpetuity,  and  irresponsibil- 
ity, which  were  inherent  in  the  political  capacity  of  the  king,  be- 
longed to  him  in  all  the  territories  subject  to  the  crown,  whatever 
was  the  nature  of  their  laws  and  government  in  other  respects. 
Everywhere  he  was  the  head  of  the  Church  and  the  fountain  of  jus- 
tice ;  everywhere  he  was  entitled  to  a  share  in  the  legislation  (ex- 
cept where  he  had  expressly  renounced  it)  ;  everywhere  he  was 
generalissimo  of  all  forces,  and  entitled  to  make  peace  or  war. 
But  minor  prerogatives  might  be  yielded,  where  they  were  incon- 
sistent with  the  laws  or  usages  of  the  place,  or  were  inapplicable 
to  the  condition  of  the  people.  In  every  question  that  respected 
the  royal  prerogatives  in  the  colonies,  where  they  were  not  of  a 
strictly  fundamental  nature,  the  first  thing  to  be  considered  was, 
whether  the  charter  of  the  particular  colony  contained  any  express 
provision  on  the  subject.  If  it  did,  that  was  the  guide.  If  it  was 
silent,  then  the  royal  prerogatives  were  in  the  colony  precisely  the 
same  as  in  the  parent  country  ;  for  in  such  cases  the  common  law 
of  England  was  the  common  law  of  the  colonies  for  such  purposes. 
Hence,  if  the  colonial  charter  contained  no  peculiar  gi^ant  to  the 
contrary,  the  king  might  erect  courts  of  justice  and  exchequer 
therein ;  and  the  colonial  judicatories,  in  point  of  law,  were 
deemed  to  emanate  from  the  crown,  under  the  modifications  made 
by  the  colonial  assemblies  under  their  charters.     The  king  also 

1  Marshall's  Colon,  ch.  13,  p.  353;  3  Wilson's  Works,  236,  237,  238,  241,  242,  243. 
VOL.  I.  9 


130  HISTORY  OP  THE   COLONIES.  [BOOK  I. 

might  extend  tlie  privilege  of  sending  representatives  to  new  towns 
in  the  colonial  assemblies.  He  might  control,  and  enter  a  nolle 
prosequi  in  criminal  prosecutions,  and  pardon  crimes,  and  release 
forfeitures.  He  might  present  to  vacant  benefices ;  and  he  was 
entitled  to  royal  moneys,  treasure-trove,  escheats,  and  forfeitures. 
No  colonial  assemblies  had  a  right  to  enact  laws,  except  with  the 
assent  of  the  crown  by  charter,  or  commission,  or  otherwise  ;  and 
if  they  exceeded  the  authority  prescribed  by  the  crown,  their  acts 
were  void.  The  king  might  alter  the  constitution  and  form  of  the 
government  of  the  colony,  where  there  was  no  charter  or  other 
confirmatory  act  by  the  colonial  assembly,  with  the  assent  of  the 
crown  ;  and  it  rested  merely  on  the  instructions  and  commissions 
given,  from  time  to  time,  by  the  crown  to  its  governors.  The  king 
had  power  also  to  vest  in  the  royal  governors  in  the  colonies,  from 
time  to  time,  such  of  his  prerogatives  as  he  should  please  ;  such 
as  the  power  to  prorogue,  adjourn,  and  dissolve  the  colonial  assem- 
blies ;  to  confirm  acts  and  laws,  to  pardon  offences,  to  act  as  cap- 
tain-general of  the  public  forces,  to  appoint  public  officers,  to  act 
as  chancellor  and  supreme  ordinary,  to  sit  in  the  highest  court  of 
appeals  and  errors,  to  exercise  the  duties  of  vice-admiral,  and  to 
grant  commissions  to  privateers.  These  last,  and  some  other  of 
the  prerogatives  of  the  king,  were  commonly  exercised  by  the  royal 
governors  without  objection. 

§  185.  The  colonial  assemblies  were  not  considered  as  standing 
on  the  same  footing  as  Parliament  in  respect  to  rights,  powers, 
and  privileges  ;  but  as  deriving  all  their  energies  from  the  crown, 
and  limited  by  the  respective  charters,  or  other  confirmatory  acts 
of  the  crown,  in  all  their  proceedings.  The  king  might,  in  respect 
to  a  colonial  assembly,  assent  to  an  act  of  assembly  before  it  met, 
or  ratify  it,  or  dissent  from  it,  after  the  session  was  closed.  He 
might  accept  a  surrender  of  a  colonial  charter,  subject  to  the  rights 
of  third  persons  previously  acquired,  and  give  the  colony  a  new 
-charter  or  otherwise  institute  therein  a  new  form  of  government. 
And  it  has  been  even  contended  that  the  king  might,  in  cases  of 
extraordinary  necessity  or  emergency,  take  away  a  charter,  where 
the  defence  or  protection  of  the  inhabitants  required  it,  leaving 
them  in  possession  of  their  civil  rights. 

§  186.  Such  are  some  of  the  royal  prerogatives  which  were 
supposed  to  exist  by  the  crown-writers  in  the  colonial  establish- 
ments, when  not  restrained  by  any  positive  charter  or  bill  of  rights. 


CH.  XVIT.]  GENERAL  REVIEW.  131 

Of  these,  many  were  undisputed ;  but  others  were  resisted  with 
pertinacity  and  effect  in  the  colonial  assemblies.^ 

§  187.  In  regard  to  the  authority  of  Parliament  to  enact  laws 
which  should  be  binding  upon  them,  there  was  quite  as  much 
obscurity  and  still  more  jealousy  spreading  over  the  whole  subject.'^ 
The  government  of  Great  Britain  always  maintained  the  doctrine 
that  the  Parliament  had  authority  to  bind  the  colonies  in  all  cases 
whatsoever.3  No  acts  of  Parliament,  however,  were  understood 
to  bind  the  colonies,  unless  expressly  named  therein.*  But  in 
America,  at  different  times  and  in  different  colonies,  different 
opinions  were  entertained  on  the  subject.^  In  fact,  it  seemed  to 
be  the  policy  of  the  colonies  as  much  as  possible  to  withdraw 
themselves  from  any  acknowledgment  of  such  authority,  except 
so  far  as  their  necessities,  from  time  to  time,  compelled  them  to 
acquiesce  in  the  parliamentary  measures  expressly  extending  to 
them.  We  have  already  seen  that  they  resisted  the  imposition  of 
taxes  upon  them  without  the  consent  of  their  local  legislatures, 
from  a  very  early  period.^ 

§  188.  But  it  was  by  no  means  an  uncommon  opinion  in  some 
of  the  colonies,  especially  in  the  proprietary  and  charter  govern- 
ments, that  no  act  of  Parliament  whatsoever  could  bind  them 
without  their  own  consent."^  An  extreme  reluctance  was  shown 
by  Massachusetts  to  any  parliamentary  interference  as  early  as 
1640 ;  ^  and  the  famous  Navigation  Acts  of  1651  and  1660  were 
perpetually  evaded,  even  when  their  authority  was  no  longer  de- 
nied, throughout  the  whole  of  New  England.^     Massachusetts,  in 

1  The  reader  will  find  the  subject  of  the  royal  prerogative  in  the  colonies  discussed  at 
large  in  Chitty  on  the  Prerogatives  of  the  Crown,  ch.  3,  p.  25  to  40 ;  in  Stokes  on  the 
Constitution  of  the  Colonies,  passim ;  in  Chalmers's  Annals  of  the  Colonies ;  and  in 
Chalmers's  Opinions,  2  vols,  passim.     See  also  Com.  Dig.  Prerogative. 

2  1  Pitk.  Hist.  164  to  169,  186,  198,  199,  200  to  205;  App.  448,  No.  9;   Id.  452, 
453;  3  Wilson's  Works,  238,  239,  240,  241,  242,  243;  2  Wilson's  Works,  54,  55,  58 
Mass.  State  Papers,  338,  339,  344,  352  to  364  ;  1  Pitk.  Hist.  255. 

8  3  Wilson's  Works,  205 ;  1  Chalm.  Annals,  140,  687,  690 ;  Stokes's  Colon.  146. 

*  1  Black.  Comm.  107,  108;  Chitty  on  Prerog.  33. 

6  1  Pitk.  Hist.  198,  199,  200  to  205,  206,  209 ;  Marshall's  Colon,  ch.  13,  p.  352;  1 
Chitty  on  Prerog.  29 ;  1  Chalmers's  Opinions,  196  to  225 ;  1  Pitk.  Hist.  ch.  6,  p.  162 
to  212. 

6  Marshall's  Colon,  ch.  13,  p.  353 ;  1  Pitk.  Hist.  89,  90,  &c.,  98;  Id.  164,  174,  179, 
182  to  212  ;  Mass.  State  Papers,  359  to  364. 

7  1  Pitk.  Hist.  91  ;  1  Chalm.  Annals,  443. 

8  2  Winthrop's  Jour.  25. 

»  1  Chalm.  Annals,  277,  280,  407,  440,  443,  448,  452,  460,  462,  639,  698 ;  Hutch. 
Coll.  496  ;  Mass.  State  Papers  [1818],  Introduction ;  Id.  50;  2  Wilson's  Works,  62. 


132  HISTORY  OF  THE  COLONIES.     ,  [BOOK  I. 

1679,  in  an  address  to  the  crown,  declared  that  she  "  apprehended 
them  to  be  an  invasion  of  the  rights,  liberties,  and  properties  of 
the  subjects  of  his  Majesty  in  the  colony,  they  not  being  repre- 
sented in  Parliament ;  and,  according  to  the  usual  sayings  of  the 
learned  in  the  law,  the  laws  of  England  were  bounded  within  the 
four  seas,  and  did  not  reach  America."  ^  However,  Massachusetts, 
as  well  as  the  other  New  England  colonies,  finally  acquiesced  in 
the  authority  of  Parliament  to  regulate  trade  and  commerce,  but 
denied  it  in  regard  to  taxation  and  internal  regulation  of  the 
colonies.2  As  late  as  1757  the  General  Court  of  Massachusetts 
admitted  the  constitutional  authority  of  Parliament  in  the  follow- 
ing words :  "  The  authority  of  all  acts  of  Parliament,  which  con- 
cern the  colonies  and  extend  to  them,  is  ever  acknowledged  in  all 
the  courts  of  law,  and  made  the  rule  of  all  judicial  proceedings 
in  the  province.  There  is  not  a  member  of  the  General  Court, 
and  we  know  no  inhabitant  within  the  bounds  of  the  government, 
that  ever  questioned  this  authority."  ^  And  in  another  address  in 
1761,  they  declared  that  "  every  act  we  make,  repugnant  to  an  act 
of  Parliament  extending  to  the  plantations,  is  ipso  facto  null  and 
void.^  And  at  a  later  period,  in  1768,  in  a  circular  address  to  the 
other  colonies,  they  admitted  "  that  his  Majesty's  high  court  of 
Parliament  is  the  supreme  legislative  power  over  the  whole  em- 
pire "  ;  contending,  however,  that  as  British  subjects  they  could 
not  be  taxed  without  their  own  consent.^ 

§  189.  "  In  the  Middle  and  Southern  provinces,"  (we  are  in- 
formed by  a  most  respectable  historian,)^  "  no  question  respecting 
the  supremacy  of  Parliament  in  matters  of  general  legislation  ex- 
isted. The  authority  of  such  acts  of  internal  regulation  as  were 
made  for  America,  as  well  as  those  for  the  regulation  of  com- 

1  1  Chalm.  Ann.  407  ;  1  Hutch.  Hist.  322  ;  2  Wilson's  Works,  62,  63. 

2  1  Pitk.  Hist.  92,  98,  181  to  212,  285,  473,  475;  1  Chalm.  Annals,  452,460;  1 
Hutch.  Hist.  322 ;  3  Hutch.  Hist.  23,  24 ;  Dummer's  Defence,  1  American  Tracts,  51  ; 
Burke's  Speech  on  Taxation  in  1774,  and  on  Conciliation  in  1775. 

*  3  Hutch,  Hist.  66 ;  Mass.  State  Papers,  337. 

*  3  Hutch.  Hist.  92  ;  App.  463  ;  Marshall's  Colon.  No.  5,  p.  472. 

«  Marshall's  Colon,  ch.  13,  p.  371  ;  App.  No.  5,  p.  472,  473  ;  1  Pitk.  Hist.  186  ;  App. 
448,  450,  453,  458.  This  was  the  ground  asserted  in  Mr.  J.  Otis's  celebrated  pamphlet 
on  the  Rights  of  the  Colonies.  1  American  Tracts  [1766],  48,  52,  .54,  56,  59,  66,  73, 
99 ;  and  also  in  Dulany's  Considerations  on  Taxing  the  Colonies,  1  Amer.  Tracts,  14, 
18,  36,  52.     See  also  1  Jefferson's  Corresp.  6,  7,  12. 

6  Marshall's  Colon,  ch.  13,  p.  354.  See  also  1  Pitk.  Hist.  162  to  212,  255,  275,  276  ; 
I  Jefferson's  Corresp.  6,  7, 104 ;  Id.  117. 


CH.  XVII.]  GENERAL  REVIEW.  133 

merce,  even  by  the  imposition  of  duties,  provided  these  duties 
were  imposed  for  the  purpose  of  regulation,  had  been  at  all  times 
admitted.  But  these  colonies,  however  they  might  acknowledge 
the  supremacy  of  Parliament  in  other  respects,  denied  the  right 
of  that  body  to  tax  them  internally."  If  there  were  any  excep- 
tions to  the  general  accuracy  of  this  statement,  they  seem  to  have 
been  too  few  and  fugitive  to  impair  the  general  result.^  In  the 
charter  of  Pennsylvania,  an  express  reservation  was  made  of  the 
power  of  taxation  by  an  act  of  Parliament,  though  this  was  argued 
not  to  be  a  sufficient  foundation  for  the  exercise  of  it.^ 

§  190.  Perhaps  the  best  general  summary  of  the  rights  and 
liberties  asserted  by  all  the  colonies  is  contained  in  the  celebrated 
declaration  drawn  up  by  the  Congress  of  the  Nine  Colonies 
assembled  at  New  York,  in  October,  1765.^  That  declaration  as- 
serted that  the  colonists  "  owe  the  same  allegiance  to  the  crown 
of  Great  Britain  that  is  owing  from  his  subjects  born  within  the 
realm,  and  all  due  subordination  to  that  august  body,  the  Parlia- 
ment of  Great  Britain."  That  the  colonists  "  are  entitled  to  all 
the  inherent  rights  and  liberties  of  his  [the  king's]  natural-born 
subjects  within  the  kingdom  of  Great  Britain."  "  That  it  is  in- 
separably essential  to  the  freedom  of  a  people,  and  the  undoubted 
right  of  Englishmen  that  no  taxes  be  imposed  on  them,  but  with 
their  own  consent,  given  personally,  or  by  their  representatives." 
That  the  people  of  the  "  colonies  are  not,  and  from  their  local  cir- 
cumstances cannot  be,  represented  in  the  House  of  Commons  of 
Great  Britain.  That  the  only  representatives  of  these  colonies 
are  persons  chosen  therein  by  themselves ;  and  that  no  taxes  ever 
have  been,  or  can  be,  constitutionally  imposed  upon  them,  but  by 
their  respective  legislatures.  That  all  supplies  of  the  crown  being 
free  gifts  from  the  people,  it  is  unreasonable  and  inconsistent  with 
the  principles  and  spirit  of  the  British  Constitution  for  the  people 
of  Great  Britain  to  grant  to  his  Majesty  the  property  of  the  colo- 
nies. And  that  the  trial  by  jury  is  the  inherent  and  invaluable 
right  of  every  British  subject  in  these  colonies."  * 

§  191.   We  here  observe  that  the  superintending  authority  of 

1  1  Pitk.  Hist.  92,  96,  98,  162  to  212  ;  App.  No.  4,  448,  450,  453. 

2  1  Chalmers's  Annals,  638,  658  ;  2  American  Tracts,  Rights  of  Parlia.  Vind.  25,  26  ; 
3  Amer.  Tracts,  App.  51  ;  Id.  Franklin's  Exam.  46. 

2  The  nine  States  were  Massachusetts,  Rhode  Island,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  and  South  Carolina. 

*  Marsh.  Hist.  Colonies,  ch.  13,  pp.  360,  470,  471 ;  1  Pitk.  Hist.  178,  179,  180,  446. 


134  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

Parliament  is  admitted  in  general  terms  ;  and  that  absolute  inde- 
pendence of  it  is  not  even  suggested,  although  in  subsequent 
clauses  certain  grievances,  by  the  Stamp  Act,  and  by  certain  acts 
levying  duties  and  restraining  trade  in  the  colonies,  are  disap- 
proved of  in  very  strong  language.^  In  the  report  of  the  commit- 
tee of  the  same  body,  on  the  subject  of  colonial  rights,  drawn  up 
with  great  ability,  it  was  stated :  "  It  is  acknowledged  that  the  Par- 
liament, collectively  considered,  as  consisting  of  king,  lords,  and 
commons,  are  the  supreme  legislature  of  the  whole  empire ;  and, 
as  such,  have  an  undoubted  jurisdiction  over  the  whole  colonies,  so 
far  as  is  consistent  with  our  essential  rights,  of  which  also  they  are 
and  must  be  the  final  judges ;  and  even  the  applications  and  peti- 
tions to  the  king  and  Parliament,  to  implore  relief  in  our  present 
difficulties,  will  be  an  ample  recognition  of  our  subjection  to,  and 
dependence  upon,  the  legislature."  ^  And  they  contended  that 
there  is  a  vast  difference  between  the  exercise  of  parliamentary 
jurisdiction  in  general  acts  for  the  amendment  of  the  common  law, 
or  even  in  general  regulations  of  trade  and  commerce  through  the 
empire,  and  the  actual  exercise  of  that  jurisdiction  in  levying  ex- 
ternal and  internal  duties  and  taxes  on  the  colonists,  while  they 
neither  are,  nor  can  be,  represented  in  Parliament."  ^  And  in 
the  petition  of  the  same  body  to  the  House  of  Commons,  there  is 
the  following  declaration :  "  We  most  sincerely  recognize  our 
allegiance  to  the  crown,  and  acknowledge  all  due  subordination  to 
the  Parliament  of  Great  Britain,  and  shall  always  retain  the  most 
grateful  sense  of  their  assistance  and  protection."  *  But  it  is 
added,  there  is  "  a  material  distinction  in  reason  and  sound  policy 
between  the  necessary  exercise  of  parliamentary  jurisdiction  in 
general  acts  for  the  amendment  of  the  common  law,  and  the  regulation 
of  trade  and  commerce  through  the  tvhole  empire,  and  the  exercise  of 
that  jurisdiction  by  imposing  taxes  on  the  colonies  "  ;  ^  thus  admit- 
ting the  former  to  be  rightful,  while  denying  the  latter.^ 

§  192.  But  after  the  passage  of  the  Stamp  Act,  in  1765,  many 
of  the  colonies  began  to  examine  this  subject  with  more  care,  and 
to  entertain  very  different  opinions  as  to  parliamentary  authority. 

1  Marsh.  Hist.  Colon,  p.  471,  note  4. 

2  Pitk.  Hist.  448,  450.  8  i  pjtk.  Hist.  453,  454. 

*  4  Amer.  Museum,  89.  ^  4  Amer.  Museum,  89,  90. 

®  The  celebrated  declaration  of  the  rights  of  the  colonies,  by  Congress,  in  1774 
(hereafter  cited),  contains  a  summary  not  essentially  different.  1  Journ.  of  Congress, 
27  to  31. 


I 


CH.  XVn.]  GENERAL  REVIEW.  135 

The  doctrines  maintained  in  debate  in  Parliament,  as  well  as  the 
alarming  extent  to  which  a  practical  application  of  those  doctrines 
might  lead,  in  drying  up  the  resources  and  prostrating  the  strength 
and  prosperity  of  the  colonies,  drove  them  to  a  more  close  and 
narrow  survey  of  the  foundation  of  parliamentary  supremacy. 
Doubts  were  soon  infused  into  their  minds,  and  from  doubts  they 
passed  by  an  easy  transition  to  a  denial,  first,  of  the  power  of  tax- 
ation, and  next,  of  all  authority  whatever  to  bind  them  by  its 
laws.i  One  of  the  most  distinguished  of  our  writers  ^  during  the 
contest  admits  that  he  entered  upon  the  inquiry  "  with  a  view  and 
expectation  of  being  able  to  trace  some  constitutional  line  between 
those  cases  in  which  we  ought,  and  those  in  which  we  ought  not, 
to  acknowledge  the  power  of  Parliament  over  us.  In  the  prosecu- 
tion of  his  inquiries,  he  became  fully  convinced  that  such  a  line 
does  not  exist ;  and  that  there  can  be  no  medium  between  ac- 
knowledging and  denying  that  power  in  all  cases." 

§  193.  If  other  colonies  did  not  immediately  arrive  at  the  same 
conclusion,  it  was  easy  to  foresee  that  the  struggle  would  ultimately 
be  maintained  upon  the  general  ground  ;  and  that  a  common  inter- 
est and  a  common  desire  of  security,  if  not  of  independence, 
would  gradually  bring  all  the  colonies  to  feel  the  absolute  necessity 
of  adhering  to  it,  as  their  truest  and  safest  defence.^  In  1773, 
Massachusetts  found  no  difficulty  in  contending  in  the  broadest 
terms  for  an  unlimited  independence  of  Parliament ;  and  in  a  bold 
and  decided  tone  denied  all  its  power  of  legislation  over  them.  A 
distinction  was  taken  between  subjection  to  Parliament,  and  alle- 
giance to  the  crown.  The  latter  was  admitted  ;  but  the  former 
was  resolutely  opposed.*  It  is  remarkable  that  the  Declaration 
of  Independence,  which  sets  forth  our  grievances  in  such  warm 
and  glowing  colors,  does  not  once  mention  Parliament,  or  allude 
to  our  connection  with  it ;  but  treats  the  acts  of  oppression  therein 
referred  to  as  acts  of  the  king,  in  combination  "with  others"  for 
the  overthrow  of  our  liberties.^ 

1  1  Jefferson's  Corresp.  6,  7,  12,  104  to  116. 

2  3  Wilson's  Works,  203  ;  Mass.  State  Papers,  339,  340. 

8  1  Wilson's  Works,  221,  222,  226,  227,  229,237,  238;  2  Wilson's  Works,  54,  55,  58 
to  63  ;  1  Pitk.  Hist.  242,  243,  246,  248,  249,  250 ;  Mass.  State  Papers,  331,  333,  337, 
339,  342  to  351,  352  to  364;  4  Debrett's  Pari.  Debates,  251,  &c.,  note;  Marsh.  Hist, 
ch.  14,  p.  412,  483  ;  1  Jefferson's  Corresp.  6,  7,  12,  100,  104  to  116. 

*  Mass.  State  Papers,  edit.  1818,  p.  342  to  365,  384  to  396 ;  I  Pitk.  Hist.  250,  251, 
453,  454. 

5  1  Jefferson's  Corresp.  6,  7,  12,  100  to  116. 


136  HISTORY   OF  THE  COLONIES.  [BOOK  I. 

§  194.  The  colonies  generally  did  not,  however,  at  this  period 
concur  in  these  doctrines  of  Massachusetts,  and  some  dijfficulties 
arose  among  them  in  the  discussions  on  this  subject.  Even  in  the 
Declaration  of  Rights  ^  drawn  up  by  the  continental  congress  in 
1774,  and  presented  to  the  world  as  their  deliberate  opinion  of 
colonial  privileges,  while  it  was  asserted,  that  they  were  entitled  to 
a  free  and  exclusive  power  of  legislation  in  their  provincial  legis- 
latures, in  all  cases  of  taxation  and  internal  policy,  they  admitted, 
from  the  necessity  of  the  case,  and  a  regard  to  the  mutual  inter- 
ests of  both  countries,  that  Parliament  might  pass  laws  hona  fide 
for  the  regulation  of  external  commerce,  though  not  to  raise  a 
revenue,  for  the  purpose  of  securing  the  commercial  advantages  of 
the  whole  empire  to  the  mother  country,  and  the  commercial  bene- 
fits of  its  respective  members.^    An  utter  denial  of  all  parliamen- 

1  1  Pitk.  Hist  235,  286,  340,  344;  Journ.  of  Congress,  1774,  p.  28,  29;  Marsh. 
Colon,  ch.  14,  p.  412,  483.     [Botta's  American  "War,  b.  4.] 

2  As  this  document  is  very  important,  and  not  easily  found,  the  material  clauses  will 
be  here  extracted.  After  reciting  many  acts  of  grievance,  the  Declaration  proceeds  as 
follows :  — 

"  The  good  people  of  the  several  colonies  of  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations,  Connecticut,  New  York,  New  Jersey,  Penn- 
sylvania, Newcastle,  Kent  and  Sussex  on  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, and  South  Carolina,  justly  alarmed  at  these  arbitrary  proceedings  of  Parliament 
and  administration,  have  severally  elected,  constituted,  and  appointed  deputies  to  meet 
and  sit  in  general  congress,  in  the  city  of  Philadelphia,  in  order  to  obtain  such  estab- 
lishment, as  that  their  religion,  laws,  and  liberties  may  not  be  subverted :  Whereupon 
the  deputies  so  appointed  being  now  assembled,  in  a  full  and  free  representation  of  these 
colonies,  taking  into  their  most  serious  consideration  the  best  means  of  attaining  the 
ends  aforesaid,  do  in  the  first  place,  as  Englishmen,  their  ancestor,  in  like  cases  have 
usually  done,  for  asserting  and  vindicating  their  rights  and  liberties,  declare, 

"  That  the  inhabitants  of  the  English  colonies  in  North  America,  by  the  immutable 
laws  of  nature,  the  principles  of  the  English  constitution,  and  the  several  charters  or 
compacts  have  the  following  rights. 

"  Resolved,  N.  C.  D.  1.  That  they  are  entitled  to  life,  liberty,  and  property ;  and 
they  have  never  ceded  to  any  sovereign  power  whatever  a  right  to  dispose  of  either 
without  their  consent. 

"  Resolved,  N.  C.  D.  2.  That  our  ancestors  who  first  settled  these  colonies  were,  at 
the  time  of  their  emigration  from  the  mother  country,  entitled  to  all  the  rights,  liberties, 
and  immunities  of  free  and  natural-born  subjects  within  the  realm  of  England. 

"  Resolved,  N.  C.  D.  3.  That  by  such  emigration  they  by  no  means  forfeited,  sur- 
rendered, or  lost  any  of  those  rights,  but  that  they  were,  and  their  descendants  now 
are,  entitled  to  the  exercise  and  enjoyment  of  all  such  of  them  as  their  local  and  other 
circumstances  enable  them  to  exercise  and  enjoy. 

"  Resolved,  4.  That  the  foundation  of  English  liberty  and  of  all  free  government  is 
a  right  in  the  people  to  participate  in  their  legislative  council ;  and  as  the  English 
colonists  are  not  represented,  and  from  their  local  and  other  circumstances  cannot 
properly  be  represented  in  the  British  Parliament,  they  are  entitled  to  a  free  and  ex- 


CH.  XVII.]  GENERAL  REVIEW.  137 

tary  authority  was  not  generally  maintained  until  after  indepen- 
dence was  in  the  full  contemplation  of  most  of  the  colonies. 

§  195.  The  principal  grounds  on  which  Parliament  asserted  the 
right  to  make  laws  to  bind  the  colonies  in  all  cases  whatsoever 
were,  that  the  colonies  were  originally  established  under  charters 
from  the  crown ;  that  the  territories  were  dependencies  of  the 
realm,  and  the  crown  could  not  by  its  grants  exempt  them  from  the 
supreme  legislative  power  of  Parliament,  which  extended  wherever 
the  sovereignty  of  the  crown  extended  ;  that  the  colonists  in  their 

elusive  power  of  legislation  in  their  several  provincial  legislatures,  where  their  right  of 
representation  can  alone  be  preserved,  in  all  cases  of  taxation  and  internal  polity,  sub- 
ject only  to  the  negative  of  their  sovereign,  in  such  manner  as  has  been  heretofore  used 
and  accustomed.  But  from  the  necessity  of  the  case,  and  a  regard  to  the  mutual  in- 
terests of  both  countries,  we  cheerfully  consent  to  the  operation  of  such  acts  of  the 
British  Parliament  as  are  bona  fide  restrained  to  the  regulation  of  our  external  com- 
merce, for  the  purpose  of  securing  the  commercial  advantages  of  the  whole  empire  to 
the  mother  country,  and  the  commercial  benefits  of  its  respective  members ;  excluding 
every  idea  of  taxation,  internal  or  external,  for  raising  a  revenue  on  the  subjects  in 
America  without  their  consent. 

"  Resolved,  N.  C.  D.  5.  That  the  respective  colonies  are  entitled  to  the  common  law 
of  England,  and  more  especially  to  the  great  and  inestimable  privilege  of  being  tried 
by  their  peers  of  the  vicinage,  according  to  the  course  of  that  law. 

"  Resolved,  6.  That  they  are  entitled  to  the  benefit  of  such  of  the  English  statutes 
as  existed  at  the  time  of  their  colonization  ;  and  which  they  have,  by  experience,  re- 
spectively found  to  be  applicable  to  their  several  local  and  other  circumstances. 

"  Resolved,  N.  C.  D.  7.  That  these,  his  Majesty's  colonies,  are  likewise  entitled  to 
all  the  immunities  and  privileges  granted  and  confirmed  to  them  by  royal  charters,  or 
secured  by  their  several  codes  of  provincial  laws. 

"  Resolved,  N.  CD.  8.  That  they  have  a  right  peaceably  to  assemble,  consider  of 
their  grievances,  and  petition  the  king ;  and  that  all  prosecutions,  prohibitory  proclama- 
tions, and  commitments  of  the  same,  are  illegal. 

"  Resolved,  N.  C.  D.  9.  That  the  keeping  a  standing  army  in  these  colonies,  in 
times  of  peace,  without  the  consent  of  the  legislature  of  that  colony  in  which  such 
army  is  kept,  is  against  law. 

"  Resolved,  N.  C.  D.  10.  It  is  indispensably  necessary  to  good  government,  and 
rendered  essential  by  the  English  Constitution,  that  the  constituent  branches  of  the 
legislature  be  independent  of  each  other;  that,  therefore,  the  exercise  of  legislative 
power  in  several  colonies,  by  a  council  appointed,  during  pleasure,  by  the  crown,  is 
unconstitutional,  dangerous,  and  destructive  to  the  freedom  of  American  legislation. 

"  All  and  each  of  which  the  aforesaid  deputies,  in  behalf  of  themselves  and  their 
constituents,  do  claim,  demand,  and  insist  on,  as  their  indubitable  rights  and  liberties, 
which  cannot  be  legally  taken  from  them,  altered,  or  abridged  by  any  power  whatever, 
without  their  own  consent,  by  their  representatives  in  their  several  provincial  legisla- 
tures." 

The  plan  of  conciliation  proposed  by  the  provincial  convention  of  New  York  in  1775 
explicitly  admits,  "  that  from  the  necessity  of  the  case  Great  Britain  should  regulate  the 
trade  of  the  whole  empire  for  the  general  benefit  of  the  whole,  but  not  for  the  separate 
benefit  of  any  particular  part."    1  Pitk.  Hist.  ch.  9,  p.  344. 


138  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

new  settlements  owed  the  same  subjection  and  allegiance  to  the 
supreme  power,  as  if  they  resided  in  England,  and  that  the  crown 
had  no  authority  to  enter  into  any  compact  to  impair  it ;  that  the 
legislative  power  over  the  colonies  is  supreme  and  sovereign  ;  that 
the  supreme  power  must  be  entire  and  complete  in  taxation  as 
well  as  in  legislation  ;  that  there  is  no  difference  between  a  grant 
of  duties  on  merchandise,  and  a  grant  of  taxes  and  subsidies ; 
that  there  is  no  difference  between  external  and  internal  taxes,  and, 
though  different  in  name,  they  are  in  effect  the  same ;  that  taxa- 
tion is  a  part  of  the  sovereign  power,  and  that  it  may  be  rightfully 
exercised  over  those  who  are  not  represented.^ 

§  196.  The  grounds  on  which  the  colonies  resisted  the  right  of 
taxation  by  Parliament  were,  (as  we  have  seen,)  that  they  were 
not  represented  in  Parliament ;  that  they  were  entitled  to  all  the 
privileges  and  immunities  of  British  subjects  ;  that  the  latter  could 
not  be  taxed  but  by  their  own  representatives  ;  that  representation 
and  taxation  were  inseparably  connected ;  that  the  principles  of 
taxation  were  essentially  distinct  from  those  of  legislation ;  that 
there  is  a  wide  difference  between  the  power  of  internal  and  exter- 
nal taxation ;  that  the  colonies  had  always  enjoyed  the  sole  right 
of  imposing  taxes  upon  themselves ;  and  that  it  was  essential  to 
their  freedom .^ 

§  197.  The  Stamp  Act  was  repealed ;  but  within  a  few  years 
afterwards  duties  of  another  sort  were  laid,  the  object  of  which 
was  to  raise  a  revenue  from  importations  into  the  colonies.  These 
of  course  became  as  offensive  to  the  colonies  as  the  prior  attempt 
at  internal  taxation,  and  were  resisted  upon  the  same  grounds  of 
unconstitutionality.^  It  soon  became  obvious  that  the  great  strug- 
gle in  respect  to  colonial  and  parliamentary  rights  could  scarcely 
be  decided  otherwise  than  by  an  appeal  to  arms.  Great  Britain 
was  resolutely  bent  upon  enforcing  her  claims  by  an  open  exercise 
of  military  power  ;  and,  on  the  other  hand,  America  scarcely  saw 
any  other  choice  left  to  her  but  unconditional  submission  or  bold 
and  unmeasured  resistance. 

1  1  Pitk.  Hist.  199,  201,  202,  204,  205,  206,  208,  209,  457  ;  Mass.  State  Papers,  338, 
339 ;  1  Chalm.  Annals,  15,  28 ;  2  Wilson's  Law  Lect.  54  to  63 ;  Chitty  on  Prerog.  ch. 
3;  1  Chalm.  Opin.  196  to  225. 

2  1  Pitk.  Hist.  199,  200,  201,  208,  209,  211,  219,  285  to  288,  311,  443,  446,  447,  448, 
453,  458,  459,  467;  Mass.  State  Papers,  344,  345,  346  to  351;  4  Debrett's  Pari.  De- 
bates, 251,  note,  &c. ;  2  Wilson's  Law  Lect.  54  to  63. 

8  1  Pitk.  Hist.  217,  219,  &c.     [Botta's  American  War,  b.  3.]. 


B  O  0  K   I  I  • 

HISTORY    OF  THE   REVOLUTION    AND    OF   THE 
CONFEDERATION. 


CHAPTER   I. 

THE    REVOLUTION. 

§  198.  We  have  now  completed  our  survey  of  the  origin  and 
political  history  of  the  American  colonies  up  to  the  period  of  the 
Revolution.  We  have  examined  the  more  important  coincidences 
and  differences  in  their  forms  of  government,  in  their  laws,  and  in 
their  political  institutions.  We  have  presented  a  general  outline 
of  their  actual  relations  with  the  parent  country  ;  of  the  rights 
which  they  claimed ;  of  the  dependence  which  they  admitted ; 
and  of  the  controversies  which  existed  at  this  period,  in  respect 
to  sovereign  powers  and  prerogatives  on  one  side,  and  colonial 
rights  and  liberties  on  the  other. 

§  199.  We  are  next  to  proceed  to  a  historical  review  of  the 
origin  of  that  union  of  the  colonies  which  led  to  the  declaration 
of  independence  ;  of  the  effects  of  that  event,  and  of  the  subse- 
quent war  upon  the  political  character  and  rights  of  the  colonies  ; 
of  the  formation  and  adoption  of  the  Articles  of  Confederation ;  of 
the  sovereign  powers  antecedently  exercised  by  the  continental 
congress ;  of  the  powers  delegated  by  the  confederation  to  the 
general  government ;  of  the  causes  of  the  decline  and  fall  of  the 
confederation ;  and  finally,  of  the  establishment  of  the  present 
Constitution  of  the  United  States.  Having  disposed  of  these  in- 
teresting and  important  topics,  we  shall  then  be  prepared  to  enter 
upon  the  examination  of  the  details  of  that  Constitution,  which 
has  justly  been  deemed  one  of  the  most  profound  efforts  of  human 
wisdom,  and  which  (it  is  believed)  will  awaken  our  admiration, 


140  HISTORY  OF  THE  REVOLUTION.  [BOOK  H. 

and  warm  our  affections  more  and  more,  as  its  excellences  are 
unfolded  in  a  minute  and  careful  survey. 

§  200.  No  redress  of  grievances  having  followed  upon  tlie  many 
appeals  made  to  the  king  and  to  Parliament,  by  and  in  behalf  of 
the  colonies,  either  conjointly  or  separately,  it  became  obvious  to 
them  that  a  closer  union  and  co-operation  were  necessary  to  vin- 
dicate their  rights  and  protect  their  liberties.  If  a  resort  to  arms 
should  be  indispensable,  it  was  impossible  to  hope  for  success  but 
in  united  efforts.  If  peaceable  redress  was  to  be  sought,  it  was  as 
clear  that  the  voice  of  the  colonies  must  be  heard,  and  their  power 
felt  in  a  national  organization.  In  1774,  Massachusetts  recom- 
mended the  assembling  of  a  continental  congress  to  deliberate 
upon  the  state  of  public  affairs ;  and  according  to  her  recommen- 
dation, delegates  were  appointed  by  the  colonies  for  a  congress  to 
be  held  in  Philadelphia  in  the  autumn  of  the  same  year.  In  some 
of  the  legislatures  of  the  colonies,  which  were  then  in  session, 
delegates  were  appointed  by  the  popular  or  representative  branch ; 
and  in  other  cases  they  were  appointed  by  conventions  of  the  peo- 
ple in  the  colonies.^  The  congress  of  delegates  (calling  themselves 
in  their  more  formal  acts  "  the  delegates  appointed  by  the  good 
people  of  these  colonies")  assembled  on  the  4th  of  September, 
1774 ;  2  and  having  chosen  officers,  they  adopted  certain  funda- 
mental rules  for  their  proceedings. 

§  201.  Thus  was  organized  under  the  auspices  and  with  the 
consent  of  the  people,  acting  directly  in  their  primary,  sovereign 
capacity,  and  without  the  intervention  of  the  functionaries,  to 
whom  the  ordinary  powers  of  government  were  delegated  in  the 
colonies,  the  first  general  or  national  government,  which  has  been 
very  aptly  called  "the  revolutionary  government,"  since  in  its 
origin  and  progress  it  was  wholly  conducted  upon  revolutionary 
principles.^  The  congress  thus  assembled,  exercised  de  facto  and 
de  jure  a  sovereign  authority  ;  not  as  tlie  delegated  agents  of  the 
governments  de  facto  of  the  colonies,  but  in  virtue  of  original 
powers  derived  from  the  people.  The  revolutionary  government, 
thus  formed,  terminated  only  when  it  was  regularly  superseded  by 
the  confederated  government  under  the  articles  finally  ratified,  as 
we  shall  hereafter  see,  in  1781.* 

1  1  Journ.  of  Cong.  2,  3,  &c.  27,  45 ;  9  Dane's  Abridg.  App.  §  5,  p.  16,  §  10,  p.  21. 
*  All  the  States  were  represented,  except  Georgia. 
8  9  Dane's  Abridg.  App.  p.  1,  §  5,  p.  16,  §  13,  p.  23. 
*^Sergeant  on  Const.  Introd.  7,  8  (2d  ed.). 


CH.  l]  history  of  the  revolution.  141; 

§  202.  The  first  and  most  important  of  their  acts  was  a  dec- 
laration that  in  determining  questions  in  this  congress,  each 
colony  or  province  should  have  one  vote ;  and  this  became  the 
established  course  during  the  Revolution.^  They  proposed  a  gen- 
eral congress  to  be  held  at  the  same  place  in  May  in  the  next 
year.  They  appointed  committees  to  take  into  consideration  their 
rights  and  grievances.  They  passed  resolutions  that  "  after  the 
1st  of  December,  1774,  there  shall  be  no  importation  into  British 
America  from  Great  Britain  or  Ireland  of  any  goods,  &c.,  or  from 
any  other  place,  of  any  such  goods  as  shall  have  been  exported 
from  Great  Britain  or  Ireland  "  ;  that  "  after  the  10th  of  Septem- 
ber, 1775,  the  exportation  of  all  merchandise,  &c.,  to  Great 
Britain,  Ireland,  and  the  West  Indies  ought  to  cease,  unless  the 
grievances  of  America  are  redressed  before  that  time."  ^  They 
adopted  a  declaration  of  rights,  not  differing  in  substance  from 
that  of  the  congress  of  1765,^  and  affirming  that  the  respective 
colonies  are  entitled  to  the  common  law  of  England,  and  the  ben- 
efit of  such  English  statutes  as  existed  at  the  time  of  their  coloni- 
zation, and  which  they  have  by  experience  respectively  found  to 
be  applicable  to  their  local  and  other  circumstances.  They  also, 
in  behalf  of  themselves  and  their  constituents,  adopted  and  signed 
certain  articles  of  association,  containing  an  agreement  of  non- 
importation, non-exportation,  and  non-consumption,  in  order  to 
carry  into  effect  the  preceding  resolves :  and  also  an  agreement  to 
discontinue  the  slave-trade.  They  also  adopted  addresses  to  the 
people  of  England,  to  the  neighboring  British  colonies,  and  to  the 
king,  explaining  their  grievances,  and  requesting  aid  and  redress. 

§  203.  In  May,  1775,  a  second  congress  of  delegates  met  from 
all  the  States.*  These  delegates  were  chosen,  as  the  preceding 
had  been,  partly  by  the  popular  branch  of  the  State  legislatures, 
when  in  session,  but  principally  by  conventions  of  the  people  in 
the  various  States.^    In  a  few  instances  the  choice  by  the  legisla- 

1  [Equality  of  representation  and  authority  was  also  insisted  upon  by  the  weaker 
colonies  in  the  confederacy  of  1643,  and  was  the  principal  source  of  the  controversies 
which  arose  to  weaken  its  efficiency.  Palfrey,  Hist,  of  New  England,  II.  243 ;  Ban- 
croft, Hist,  of  U.  S.,  I.  420  ;  Towle,  Analysis  of  the  Constitution,  302,  et  seq.] 

2  1  Jour,  of  Cong.  21. 
8  See  ante,  p.  133. 

*  Georgia  did  not  send  delegates  until  the  15th  of  July,  1775,  who  did  not  take  their 
seats  until  the  13th  of  September. 

^  See  Penhallow  v.  Doane,  3  Dall.  54,  and  particularly  the  opinions  of  Iredell,  J.,  and 
Blair,  J.,  on  this  point.    Journals  of  1775,  p.  73  to  79. 


142  HISTORY  OF  THE  REVOLUTION.  [BOOK  H. 

tive  body  was  confirmed  by  that  of  a  convention,  and  e  converso} 
They  immediately  adopted  a  resolution  prohibiting  all  exporta- 
tions  to  Quebec,  Nova  Scotia,  St.  Johns,  Newfoundland,  Georgia, 
except  St.  Johns  Parish,  and  East  and  West  Florida.^  This  was 
followed  up  by  a  resolution  that  the  colonies  be  immediately  put 
into  a  state  of  defence.  They  prohibited  the  receipt  and  nego- 
tiation of  any  British  government  bills,  and  the  supply  of  any 
provisions  or  necessaries  for  the  British  army  and  navy  in  Massa- 
chusetts, or  transports  in  their  service.^  They  recommended  to 
Massachusetts  to  consider  the  offices  of  governor  and  lieutenant- 
governor  of  that  province  vacant,  and  to  make  choice  of  a  council 
by  the  representatives  in  assembly,  by  whom  the  powers  of  gov- 
ernment should  be  exercised,  until  a  governor  of  the  king's  ap- 
pointment should  consent  to  govern  the  colony  according  to  its 
charter.  They  authorized  the  raising  of  continental  troops,  and 
appointed  General  Washington  commander-in-chief,  to  whom  they 
gave  a  commission  in  the  name  of  the  delegates  of  the  united 
colonies.  They  had  previously  authorized  certain  military  meas- 
ures, and  especially  the  arming  of  the  militia  of  New  York,  and 
the  occupation  of  Crown  Point  and  Ticonderoga.  They  author- 
ized the  emission  of  two  millions  of  dollars  in  bills  of  credit, 
pledging  the  colonies  to  the  redemption  thereof.  They  framed 
rules  for  the  government  of  the  army.  They  published  a  solemn 
declaration  of  the  causes  of  their  taking  up  arms,  an  address  to 
the  king,  entreating  a  change  of  measures,  and  an  address  to  the 
people  of  Great  Britain,  requesting  their  aid,  and  admonishing 
them  of  the  threatening  evils  of  a  separation.  They  erected  a 
general  post-office,  and  organized  the  department  for  all  the  colo- 
nies. They  apportioned  the  quota  that  each  colony  should  pay  of 
the  bills  emitted  by  Congress.* 

§  204.  At  a  subsequent  adjournment,  they  authorized  the  equip- 
ment of  armed  vessels  to  intercept  supplies  to  the  British,  and  the 
organization  of  a  marine  corps.  They  prohibited  all  exportations, 
except  from  colony  to  colony  under  the  inspection  of  committees. 
They  recommended  to  New  Hampshire,  Virginia,  and  South  Caro- 
lina to  call  conventions  of  the  people  to  establish  a  form  of  gov- 

1  Journals  of  Congress  of  1775,  p.  73  to  79. 

2  Journals  of  Congress  of  1775,  p.  103. 
8  Journals  of  Congress  of  1775,  p.  115. 
*  Journals  of  Congress  of  1775,  p.  177. 


CH.  I.]  HISTORY   OF   THE  REVOLUTION.  143 

eminent.^  They  authorized  the  grant  of  commissions  to  capture 
armed  vessels  and  transports  in  the  British  service,  and  recom- 
mended the  creation  of  prize  courts  in  each  colony,  reserving  a 
right  of  appeal  to  Congress.^  They  adopted  rules  for  the  regula- 
tion of  the  navy  and  for  the  division  of  prizes  and  prize  money .^ 
They  denounced  as  enemies  all  who  should  obstruct  or  discourage 
the  circulation  of  bills  of  credit.  They  authorized  further  emis- 
sions of  bills  of  credit,  and  created  two  military  departments  for 
the  Middle  and  Southern  colonies.  They  authorized  general  re- 
prisals and  the  equipment  of  private  armed  vessels  against  British 
vessels  and  property.*  They  organized  a  general  treasury  depart- 
ment. They  authorized  the  exportation  and  importation  of  all 
goods  to  and  from  foreign  countries,  not  subject  to  Great  Britain, 
with  certain  exceptions,  and  prohibited  the  importation  of  slaves, 
and  declared  a  forfeiture  of  all  prohibited  goods.°  They  recom- 
mended to  the  respective  assemblies  and  conventions  of  the  colo- 
nies, where  no  government  sufficient  to  the  exigencies  had  been 
established,  to  adopt  such  government  as  in  the  opinion  of  the  rep- 
resentatives should  best  conduce  to  the  happiness  and  safety  of  their 
constituents  in  particular,  and  America  in  general,  and  adopted  a 
preamble  which  stated  "  that  the  exercise  of  every  kind  of  authority 
under  the  crown  of  Great  Britain  should  be  totally  suppressed."  ^ 
§  205.  These  measures,  all  of  which  progressively  pointed  to  a 
separation  from  the  mother  country,  and  evinced  a  determination 
to  maintain,  at  every  hazard,  the  liberties  of  the  colonies,  were 
soon  followed  by  more  decisive  steps.  On  the  7th  of  June,  1776, 
certain  resolutions  respecting  independency  were  moved,  which 
were  referred  to  a  committee  of  the  whole.  On  the  10th  of  June 
it  was  resolved  that  a  committee  be  appointed  to  prepare  a  dec- 
laration "  that  these  united  colonies  are,  and  of  right  ought  to  be, 
free  and  independent  States  ;  that  they  are  absolved  from  all 
allegiance  to  the  British  crown ;  and  that  all  political  connection 
between  them  and  the  state  of  Great  Britain  is,  and  ought  to  be, 
dissolved."  ^     On  the  11th  of  June  a  committee  was  appointed  to 

1  Journals  of  Congress  of  1775,  p.  231,  235,  279. 

2  Journals  of  Congress  of  1775,  p.  259,  260,  &c. 
*  Journals  of  Congress  of  1776,  p.  13. 

4  Journals  of  Congress  of  1776,  p.  106,  107,  118,  119. 
^  Journals  of  Congress  of  1776,  p.  122,  123. 
^  Journals  of  Congress  of  1776,  p.  166,  174. 
7  Journals  of  Congress  of  1776,  p.  205,  206. 


144  fflSTORY  OF  THE  REVOLUTION.  [BOOK  H. 

prepare  and  digest  the  form  of  a  confederation  to  be  entered  into 
between  the  colonies,  and  also  a  committee  to  prepare  a  plan  of 
treaties  to  be  proposed  to  foreign  powers.^  On  the  28th  of  June 
the  committee  appointed  to  prepare  a  declaration  of  independence 
brought  in  a  draft.  On  the  2d  of  July  Congress  adopted  the  reso- 
lution for  independence  ;  and  on  the  4th  of  July  they  adopted  the 
Declaration  of  Independence,  and  thereby  solemnly  published  and 
declared  "  That  these  united  colonies  are,  and  of  right  ought  to  be, 
free  and  independent  States ;  that  they  are  absolved  from  all  alle- 
giance to  the  British  crown ;  and  that  all  political  connection 
between  them  and  the  state  of  Great  Britain  is,  and  ought  to  be, 
totally  dissolved ;  and  that  as  free  and  independent  States  they 
have  full  power  to  levy  war,  conclude  peace,  contract  alHances, 
establish  commerce,  and  to  do  all  other  acts  and  things  which 
independent  States  may  of  right  do.'' 

§  206.  These  minute  details  have  been  given,  not  merely  be- 
cause they  present  an  historical  view  of  the  actual  and  slow 
progress  towards  independence,  but  because  they  give  rise  to 
several  very  important  considerations  respecting  the  political  rights 
and  sovereignty  of  the  several  colonies,  and  of  the  union  which 
-was  thus  spontaneously  formed  by  the  people  of  the  united  colo- 
nies. 

§  207.  In  the  first  place,  antecedent  to  the  Declaration  of  Inde- 
pendence none  of  the  colonies  were,  or  pretended  to  be,  sovereign 
states,  in  the  sense  in  which  the  term  "  sovereign  "  is  sometimes 
applied  to  states.^  The  term  "  sovereign  "  or  "  sovereignty  "  is 
used  in  different  senses,  which  often  leads  to  a  confusion  of  ideas, 
and  sometimes  to  very  mischievous  and  unfounded  conclusions. 
By  "  sovereignty  "  in  its  largest  sense  is  meant  supreme,  absolute, 
uncontrollable  power,  the  jus  summi  imperii^  the  absolute  right  to 
govern.  A  state  or  nation  is  a  body  politic,  or  society  of  men, 
united  together  for  the  purpose  of  promoting  their  mutual  safety 
and  advantage  by  their  combined  strength.*  By  the  very  act  of 
civil  and  political  association,  each  citizen  subjects  himself  to  the 
authority  of  the  whole ;  and  the  authority  of  all  over  each  mem- 
ber essentially  belongs  to  the  body  politic.^    A  state  which  pos- 

1  Journals  of  Congress  of  1776,  p.  207. 

2  3  Dall.  110,  per  Blair,  J. ;  9  Dane's  Abridg.  App.  §  2,  p.  10,  §  3,  p.  12,  k  5,  P-  16. 
8  1  Bl.  Coram.  49  ;  2  Dall.  471,  per  Jay,  C.  J. 

*  Vattel,  B.  1,  eh.  1,  n  ;  2  Dall.  455,  per  Wilson,  J. 
6  Vattel,  B.  l,ch.  1,§2. 


CH.  I.]  HISTORY   OF  THE  REVOLUTION.  145 

sesses  this  absolute  power,  without  any  dependence  upon  any 
foreign  power  or  state,  is  in  the  largest  sense  a  sovereign  state. ^ 
And  it  is  wholly  immaterial  what  is  the  form  of  the  government, 
or  by  whose  hands  this  absolute  authority  is  exercised.  It  may  be 
exercised  by  the  people  at  large,  as  in  a  pure  democracy  ;  or  by  a 
select  fewj  as  in  an  absolute  aristocracy  ;  or  by  a  single  person,  as 
in  an  absolute  monarchy .^  But  "  sovereignty  "  is  often  used  in  a 
far  more  limited  sense  than  that  of  which  we  have  spoken,  to 
designate  such  political  powers  as  in  the  actual  organization  of 
the  particular  state  or  nation  are  to  be  exclusively  exercised  by 
certain  public  functionaries,  without  the  control  of  any  superior 
authority.  It  is  in  this  sense  that  Blackstone  employs  it,  when  he 
says  that  it  is  of  "  the  very  essence  of  a  law  that  it  is  made  by  the 
supreme  power.  Sovereignty  and  legislature  are,  indeed,  converti- 
ble terms ;  one  cannot  subsist  without  the  other.'^  ^  Now,  in  every 
limited  government  the  power  of  legislation  is,  or  at  least  may  be, 
limited  at  the  will  of  the  nation  ;  and  therefore  the  legislature  is 
not  in  an  absolute  sense  sovereign.  It  is  in  the  same  sense  that 
Blackstone  says,  "  the  law  ascribes  to  the  king  of  England  the 
attribute  of  sovereignty  or  pre-eminence,"  *  because,  in  respect  to 
the  powers  confided  to  him,  he  is  dependent  on  no  man,  account- 
able to  no  man,  and  subjected  to  no  superior  jurisdiction.  Yet 
the  king  of  England  cannot  make  a  law ;  and  his  acts,  beyond  the 
powers  assigned  to  him  by  the  Constitution,  are  utterly  void. 

§  208.  In  like  manner  the  word  "  state "  is  used  in  various 
senses.  In  its  most  enlarged  sense  it  means  the  people  composing 
a  particular  nation  or  community.  In  this  sense  the  state  means 
the  whole  people,  united  into  one  body  politic  ;  and  the  state  and 
the  people  of  the  state  are  equivalent  expressions.^  Mr.  Justice 
Wilson,  in  his  Law  Lectures,  uses  the  word  "  state  "  in  its  broad- 
est sense.  "  In  free  states,"  says  he,  "  the  people  form  an  arti- 
ficial person,  or  body  politic,  the  highest  and  noblest  that  can 
be  known.     They  form  that  moral  person,  which  in  one  of  my 

^  2  Dall.  456,  457,  per  Wilson,  J. 

2  Vattel,  B.  1,  ch.  1,  §  2,  3. 

3  1  Bl.  Comm.  46.  See  also  1  Tucker's  Black.  Comm.  App.  note  A.,  a  commentary 
on  this  clavise  of  the  author's  text.    > 

*  1  Bl.  Comm.  241. 

6  Penhallow  v.  Doane,  3  Dall.  R.  93,  94,  per  Iredell,  J. ;  Chisholm  v.  Georgia,  2  Dall. 
455,  per  Wilson,  J.;  2  Wilson's  Lect.  120 ;  Dane's  Appx.  §  50,  p.  63.     See  Dr.  Lie- 
ber's  Political  Ethics,  B.  2,  ch.  4,  p.  163. 
VOL.  I.  10 


146  HISTORY  OF  THE  REVOLUTION.  [BOOK  II. 

former  lectures  ^  I  described  as  a  complete  body  of  free,  natural 
persons,  united  together  for  their  common  benefit ;  as  having  an 
understanding  and  a  will;  as  deliberating,  and  resolving,  and 
acting  ;  as  possessed  of  interests  which  it  ought  to  manage ;  as 
enjoying  rights  which  it  ought  to  maintain ;  and  as  lying  under 
obligations  which  it  ought  to  perform.  To  this  moral  person  we 
assign,  by  way  of  eminence,  the  dignified  appellation  of  state."  ^ 
But  there  is  a  more  limited  sense  in  which  the  word  is  often  used, 
where  it  expresses  merely  the  positive  or  actual  organization  of 
the  legislative,  executive,  or  judicial  powers.^  Thus,  the  actual 
government  of  a  state  is  frequently  designated  by  the  name  of  the 
state.  We  say,  the  state  has  power  to  do  this  or  that ;  the  state 
has  passed  a  law,  or  prohibited  an  act,  meaning  no  more  than  that 
the  proper  functionaries,  organized  for  that  purpose,  have  power 
to  do  tlie  act,  or  have  passed  the  law,  or  prohibited  the  particu- 
lar action.  The  sovereignty  of  a  nation  or  state,  considered  with 
reference  to  its  association,  as  a  body  politic,  may  be  absolute 
and  uncontrollable  in  all  respects,  except  the  limitations  which  it 
chooses  to  impose  upon  itself.^  But  the  sovereignty  of  the  gov- 
ernment organized  within  the  state  may  be  of  a  very  limited 
nature.  It  may  extend  to  few  or  to  many  objects.  It  may  be 
unlimited  as  to  some,  it  may  be  restrained  as  to  others.  To  the 
extent  of  the  power  given,  the  government  may  be  sovereign,  and 
its  acts  may  be  deemed  the  sovereign  acts  of  the  state.  Nay,  the 
state,  by  which  we  mean  the  people  composing  the  state,  may 
divide  its  sovereign  powers  among  various  functionaries,  and  each 
in  the  limited  sense  would  be  sovereign  in  respect  to  the  powers 
confided  to  each,  and  dependent  in  all  other  cases.^  Strictly 
speaking,  in  our  republican  forms  of  government  the  absolute 
sovereignty  of  the  nation  is  in  the  people  of  the  nation  ;  and  the 

1  1  Wilson's  Lect.  304,  305. 

2  2  Wilson's  Lect.  120,  121. 

8  Mr.  Madison,  in  his  elaborate  report  in  the  Virginia  legislature  in  January,  1800, 
adverts  to  the  different  senses  in  which  the  word  "  state  "  is  used.  He  says,  "  It  is  in- 
deed true,  that  the  term  '  states  *  is  sometimes  used  in  a  vague  sense,  and  sometimes 
in  different  senses,  according  to  the  subject  to  which  it  is  applied.  Thus  it  sometimes 
means  the  separate  sections  of  territory  occupied  by  the  political  societies  within  each ; 
sometimes  the  particular  governments  established  by  those  societies ;  sometimes  those 
societies,  as  organized  into  those  particular  governments  ;  and  lastly,  it  means  tlie  people 
composing  those  political  societies,  in  their  highest  sovereign  capacity." 

*  2  Dall.  433,  Iredell,  J. ;  Id.  455,  456,  per  Wilson,  J. 

6  3  Dall.  93,  per  Iredell,  J. ;  2  Dall.  455,  457,  per  Wilson,  J. 


CH.  l]  history  of  the  revolution.  147 

residuary  soTereignty  of  each  State,  not  granted  to  any  of  its  pub- 
lic functionaries,  is  in  the  people  of  the  State.^ 

§  209.  There  is  another  mode  in  which  we  speak  of  a  state  as 
sovereign,  and  that  is  in  reference  to  foreign  states.  Whatever 
may  be  the  internal  organization  of  the  government  of  any  state, 
if  it  has  the  sole  power  of  governing  itself  and  is  not  dependent 
upon  any  foreign  state,  it  is  called  a  sovereign  state  ;  that  is,  it  is 
a  state  having  the  same  rights,  privileges,  and  powers  as  other 
independent  states.  It  is  in  this  sense  that  the  term  is  generally 
used  in  treatises  and  discussions  on  the  law  of  nations.  A  full 
consideration  of  this  subject  will  more  properly  find  place  in  some 
future  page. 2 

§  210.  Now  it  is  apparent  that  none  of  the  colonies  before  the 
Revolution  were,  in  the  most  large  and  general  sense,  independent 
or  sovereign  communities.  They  were  all  originally  settled  under, 
and  subjected  to,  the  British  crown.^  Their  powers  and  authori- 
ties were  derived  from,  and  limited  by,  their  respective  charters. 
All,  or  nearly  all,  of  these  charters  controlled  their  legislation  by 
prohibiting  them  from  making  laws  repugnant  or  contrary  to 
those  of  England.  The  crown,  in  many  of  them,  possessed  a 
negative  upon  their  legislation,  as  well  as  the  exclusive  appoint- 

1  2  Dall.  471,  472,  per  Jay,  C.  J. 

Mr.  J.  Q,  Adams,  in  his  oration  on  the  4th  of  July,  1831,  published  after  the  prepa- 
ration of  these  Commentaries,  uses  the  following  language  :  "  It  is  not  true  that  there 
must  reside  in  all  governments  an  absolute,  uncontrollable,  irresistible,  and  despotic 
power ;  nor  is  such  power  in  any  manner  essential  to  sovereignty.  Uncontrollable 
power  exists  in  no  government  on  earth.  The  sternest  despotisms  in  any  region  and 
in  every  age  of  the  world  are  and  have  been  under  perpetual  control.  Unlimited 
power  belongs  not  to  man ;  and  rotten  will  be  the  foundation  of  every  government 
leaning  upon  such  a  maxim  for  its  support.  Least  of  all  can  it  be  predicated  of  a 
government  professing  to  be  founded  upon  an  original  compact.  The  pretence  of  an 
absolute,  irresistible,  despotic  power,  existing  in  every  government  somewhere,  is  incom- 
patible with  the  first  principles  of  natural  right." 

^  Dr.  Rush,  in  a  political  communication,  1786,  uses  the  term  "sovereignty  "  in  an- 
other and  somewhat  more  limited  sense.  He  says,  "The  people  of  America  have 
mistaken  the  meaning  of  the  word  *  sovereignty.'  Hence  each  State  pretends  to  be  sov- 
ereign. In  Europe  it  is  applied  to  those  states  which  possess  the  power  of  making  war 
and  peace,  of  forming  treaties,  and  the  like.  As  this  power  belongs  only  to  Congress, 
they  are  the  only  sovereign  power  in  the  United  States.  We  commit  a  similar  mistake 
in  our  ideas  of  the  word  '  independent.'  No  individual  State,  as  such,  has  any  claim 
to  independence.  She  is  independent  only  in  a  union  with  her  sister  States  in  Congress." 
1  Amer.  Museum,  8,  9.  Dr.  Barton,  on  the  other  hand,  in  a  similar  essay,  explains  the 
operation  of  the  system  of  the  confederation  in  the  manner  which  has  been  given  in  the 
text.     1  Amer.  Museum,  13,  14. 

8  2  Dall.  471,  per  Jay,  C.  J. 


148  HISTORY   OF  THE  REVOLUTION.  [BOOK  H. 

ment  of  their  superior  officers  ;  and  a  right  of  revision,  by  way  of 
appeal,  of  the  judgments  of  their  courts.^  In  their  most  solemn 
declarations  of  rights,  they  admitted  themselves  bound,  as  British 
subjects,  to  allegiance  to  the  British  crown  ;  and  as  such,  they 
claimed  to  be  entitled  to  all  the  rights,  liberties,  and  immunities 
of  freeborn  British  subjects.  They  denied  all  power  of  taxation, 
except  by  their  own  colonial  legislatures ;  but  at  the  same  time 
they  admitted  themselves  bound  by  acts  of  the  British  Parliament 
for  the  regulation  of  external  commerce,  so  as  to  secure  the  com- 
mercial advantages  of  the  whole  empire  to  the  mother  country,  and 
the  commercial  benefits  of  its  respective  members.^  So  far  as 
respects  foreign  states,  the  colonies  were  not,  in  the  sense  of  the 
laws  of  nations,  sovereign  states,  but  mere  dependencies  of  Great 
Britain.  They  could  make  no  treaty,  declare  no  war,  send  no 
ambassadors,  regulate  no  intercourse  or  commerce,  nor  in  any 
other  shape  act,  as  sovereigns,  in  the  negotiations  usual  between 
independent  states.  In  respect  to  each  other,  they  stood  in  the 
common  relation  of  British  subjects ;  the  legislation  of  neither 
could  be  controlled  by  any  other ;  but  there  was  a  common  sub- 
jection to  the  British  crown. ^  If  in  any  sense  they  might  claim 
the  attributes  of  sovereignty,  it  was  only  in  that  subordinate  sense 
to  which  we  have  alluded  as  exercising  within  a  limited  extent 
certain  usual  powers  of  sovereignty.  They  did  not  even  affect  to 
claim  a  local  allegiance.* 

§  211.  In  the  next  place,  the  colonies  did  not  severally  act  for 
themselves,  and  proclaim  their  own  independence.  It  is  true,  that 
some  of  the  States  had  previously  formed  incipient  governments 
for  themselves ;  but  it  was  done  in  compliance  vrith  the  recom- 
mendations of  Congress.^  Virginia,  on  the  29th  of  June,  1776,  by 
a  convention  of  delegates,  declared  "  the  government  of  this  coun- 
try, as  formerly  exercised  under  the  crown  of  Great  Britain,  totally 
dissolved  "  ;  and  proceeded  to  form  a  new  constitution  of  govern- 

1  See  Marsliall's  Hist,  of  Colonies,  p.  483  ;  Journals  of  Congress,  1774,  p.  29. 

2  Journal  of  Congress,  1774,  p.  27,  29,  38,  39;  1775,  p.  152,  156;  Marsliall's  Hist, 
of  Colonies,  ch.  14,  p.  412,  483. 

3  1  Chalmers's  Annals,  686,  687  ;  2  Dall.  470,  per  Jay,  C.  J. 

*  Journal  of  Congress,  1776,  p.  282 ;  2  Haz.  Col,  591  ;  Marsh.  Colonies,  App.  No. 
3,  p.  469, 

6  Journal  of  Congress,  1775,  p.  115,  231,  235,  279  ;  1  Pitk.  Hist,  351,  355;  Marsh. 
Colon,  ch.  14,  p.  441,  447  ;  9  Hening,  Stat,  112,  113;  9  Dane's  Abridg,  App.  §  5,  p. 
16. 


CH.  I.]  HISTORY   OF  THE  REVOLUTION.  149 

ment.  New  Hampshire  also  formed  a  government  in  December, 
1775,  which  was  manifestly  intended  to  be  temporary, "  during  (as 
they  said)  the  unhappy  and  unnatural  contest  with  Great  Britain. '^  ^ 
New  Jersey,  too,  established  a  frame  of  government  on  the  2d  of 
July,  1776 ;  but  it  was  expressly  declared  that  it  should  be  void 
upon  a  reconciliation  with  Great  Britain.^  And  South  Carolina,  in 
March,  1776,  adopted  a  constitution  of  government ;  but  this  was, 
in  like  manner,  "  established  until  an  accommodation  between 
Great  Britain  and  America  could  be  obtained."  ^  But  the  declara- 
tion of  independence  of  all  the  colonies  was  the  united  act  of  all. 
It  was  "  a  declaration  by  the  representatives  of  the  United  States 
of  America  in  Congress  assembled";  "by  the  delegates  appointed 
by  the  good  people  of  the  colonies,"  as  in  a  prior  declaration  of 
rights  they  were  called.*  It  was  not  an  act  done  by  the  State  gov- 
ernments then  organized,  nor  by  persons  chosen  by  them.  It  was 
emphatically  the  act  of  the  whole  people  of  the  united  colonies,  by 
the  instrumentality  of  their  representatives,  chosen  for  that  among 
other  purposes.^  It  was  not  an  act  competent  to  the  State  govern- 
ments, or  any  of  them,  as  organized  under  their  charters,  to  adopt. 
Those  charters  neither  contemplated  the  case  nor  provided  for  it. 
It  was  an  act  of  original,  inherent  sovereignty  by  the  people  them- 
selves, resulting  from  their  right  to  change  the  form  of  govern- 
ment, and  to  institute  a  new  one,  whenever  necessary  for  their 
safety  and  happiness.  So  the  Declaration  of  Independence  treats 
it.  No  State  had  presumed  of  itself  to  form  a  new  government, 
or  to  provide  for  the  exigencies  of  the  times,  without  consulting 
Congress  on  the  subject ;  and  when  any  acted,  it  was  in  pursu- 
ance of  the  recommendation  of  Congress.  It  was,  therefore,  the 
achievement  of  the  whole  for  the  benefit  of  the  whole.  The 
people  of  the  united  colonies  made  the  united  colonies  free  and 
independent  States,  and  absolved  them  from  all  allegiance  to  the 
British  crown.  The  Declaration  of  Independence  has  accordingly 
always  been  treated  as  an  act  of  paramount  and  sovereign  author- 
ity, complete  and  perfect  per  se,  and  ipso  facto  working  an  entire 
dissolution  of  all  political  connection  with,  and  allegiance  to,  Great 

1  2  Belk.  N.  Hamp.  ch.  25,  p.  306,  308,  318 ;  1  Pitk.  Hist.  351,  355. 

2  Stokes's  Hist.  Colon.  51,  75. 

8  Stokes's  Hist.  Colon.  105 ;  1  Pitk.  Hist.  355. 

*  Journal,  1776,  p.  241  ;  Journal,  1774,  pp.  27,  45. 

6  2  Dall.  470,  471,  per  Jay,  C.  J. ;  9  Dane's  Abridg.  App.  §  12,  13,  p.  23,  24. 


150  HISTORY  OF  THE  REVOLUTION.  [BOOK  IL 

Britain.     And  this,  not  merely  as  a  practical  fact,  but  in  a  legal 
and  constitutional  view  of  the  matter  by  courts  of  justice.^ 

§  212.  In  the  debates  in  the  South  Carolina  legislature,  in  Jan- 
uary, 1788,  respecting  the  propriety  of  calling  a  convention  of  the 
people  to  ratify  or  reject  the  Constitution,  a  distinguished  states- 
man ^  used  the  following  language:  "This  admirable  manifesto 
(that  is,  the  Declaration  of  Independence)  sufficiently  refutes  the 
doctrine  of  the  individual  sovereignty  and  independence  of  the 
several  States.  In  that  declaration  the  several  States  are  not  even 
enumerated  ;  but,  after  reciting  in  nervous  language  and  with  con- 
vincing arguments  our  right  to  independence,  and  the  tyranny 
which  compelled  us  to  assert  it,  the  declaration  is  made  in  the  fol- 
lowing words :  '  We,  therefore,  the  representatives  of  the  United 
States,  &c.,  do,  in  the  name,  &c.,  of  the  good  people  of  these  col- 
onies, solemnly  publish,  <fec.,that  these  united  colonies  are,  and  of 
right  ought  to  be,  free  and  independent  States.'  The  separate  in- 
dependence and  individual  sovereignty  of  the  several  States  were 
never  thought  of  by  the  enlightened  band  of  patriots  who  framed 
this  declaration.  The  several  States  are  not  even  mentioned  by 
name  in  any  part,  as  if  it  was  intended  to  impress  the  maxim  on 
America  that  our  freedom  and  independence  arose  from  our  union, 
and  that  without  it  we  could  never  be  free  or  independent.  Let 
us  then  consider  all  attempts  to  weaken  this  union,  by  maintaining 
that  each  State  is  separately  and  individually  independent,  as  a 
species  of  political  heresy,  which  can  never  benefit  us,  but  may 
bring  on  us  the  most  serious  distresses.''  ^ 

1  2  Dallas,  K.  470. 

2  Mr.  Charles  Cotesworth  Pinckney. 

8  Debates  ia  South  Carolina,  1788,  printed  by  A.  E.  Miller,  Charleston,  1831,  p.  43, 
44.  Mr.  Adams,  in  his  oration  on  the  4th  of  July,  1831,  which  is  valuable  for  its 
views  of  constitutional  principles,  insists  upon  the  same  doctrine  at  considerable  length. 
Though  it  has  been  published  since  the  original  preparation  of  these  lectures,  I  gladly 
avail  myself  of  an  opportunity  to  use  his  authority  in  corroboration  of  the  same  views. 
"  The  union  of  the  colonies  had  preceded  this  declai*ation  [of  independence],  and  even 
the  commencement  of  the  war.  The  declaration  was  joint,  that  the  united  colonies  were 
free  and  independent  States,  but  not  that  any  one  of  them  was  a  free  and  independent 
State,  separate  from  the  rest."  "  The  Declaration  of  Independence  was  a  social  com- 
pact, by  which  the  whole  people  covenanted  with  each  citizen,  and  each  citizen  with  the 
whole  people,  that  the  united  colonies  were,  and  of  right  ought  to  be,  free  and  indepen- 
dent States.  To  this  compact,  union  was  as  vital  as  freedom  or  independence.  The 
Declaration  of  Independence  announced  the  severance  of  the  thirteen  united  colonies 
from  the  rest  of  the  British  Empire,  and  the  existence  of  their  people,  from  that  day 
forth,  as  an  independent  nation.     The  people  of  all  the  colonies,  speaking  by  their  rep- 


CH.  I.]  HISTORY   OF  THE  REVOLUTION.  151 

§  213.  In  the  next  place,  we  have  seen  that  the  power  to  do 
this  act  was  not  derived  from  the  State  governments,  nor  was  it 
done  generally  with  their  co-operation.  The  question  then  natu- 
rally presents  itself,  if  it  is  to  be  considered  as  a  national  act,  in 
what  manner  did  the  colonies  become  a  nation,  and  in  what  man- 
ner did  Congress  become  possessed  of  this  national  power  ?  The 
true  answer  must  be,  that  as  soon  as  Congress  assumed  powers  and 
passed  measures  which  were  in  their  nature  national,  to  that  ex- 
tent the  people,  from  whose  acquiescence  and  consent  they  took 
effect,  must  be  considered  as  agreeing  to  form  a  nation.^  The 
Congress  of  1774,  looking  at  the  general  terms  of  the  commissions 
under  which  the  delegates  were  appointed,  seem  to  have  possessed 
the  power  of  concerting  such  measures  as  they  deemed  best  to 
redress  the  grievances  and  preserve  the  rights  and  liberties  of  all 
the  colonies.  Their  duties  seem  to  have  been  principally  of  an 
advisory  nature  ;  but  the  exigencies  of  the  times  led  them  rather 
to  follow  out  the  wishes  and  objects  of  their  constituents,  than 
scrupulously  to  examine  the  words  in  which  their  authority  was 
communicated.2  The  Congress  of  1775  and  1776  were  clothed 
with  more  ample  powers,  and  the  language  of  their  commissions 
generally  was  sufficiently  broad  to  embrace  the  right  to  pass  meas- 
ures of  a  national  character  and  obligation.  The  caution  necessary 
at  that  period  of  the  Revolutionary  struggle  rendered  that  language 
more  guarded  than  the  objects  really  in  view  would  justify ;  but 
it  was  foreseen  that  the  spirit  of  the  people  would  eagerly  second 
every  measure  adopted  to  further  a  general  union  and  resistance 
against  the  British  claims.  The  Congress  of  1775  accordingly 
assumed  at  once  (as  we  have  seen)  the  exercise  of  some  of  the 
highest  functions  of  sovereignty.  They  took  measures  for  national 
defence  and  resistance  ;  they  followed  up  the  prohibitions  upon 
trade  and  intercourse  with  Great  Britain  ;  they  raised  a  national 
army  and  navy,  and  authorized  limited  national  hostilities  against 
Great  Britain ;  they  raised  money,  emitted  bills  of  credit,  and 
contracted  debts  upon  national  account ;  they  established  a  national 

resentatives,  constituted  themselves  one  moral  person  before  the  face  of  their  fellow- 
men.  The  Declaration  of  Independence  was  not  a  declaration  of  liberty  merely  ac- 
quired, nor  was  it  a  form  of  government.  The  people  of  the  colonies  were  already  free, 
and  their  forms  of  government  were  various.  They  were  all  colonies  of  a  monarchy. 
The  king  of  Great  Britain  was  their  common  sovereign." 

1  3  Dall.  R.  80,  81,  90,  91,  109,  110,  111,  117. 

2  3  Dall.  R.  91. 


152  HISTORY  OF  THE  REVOLUTION.  [BOOK  XL 

post-office  ;  and  finally  they  authorized  captures  and  condemnation 
of  prizes  in  prize  courts,  with  a  reserve  of  appellate  jurisdiction 
to  themselves. 

§  214.  The  same  body,  in  1776,  took  bolder  steps,  and  exerted 
powers  which  could  m  no  other  manner  be  justified  or  accounted 
for,  than  upon  the  supposition  that  a  national  union  for  national 
purposes  already  existed,  and  that  the  Congress  was  invested  with 
sovereign  power  over  all  the  colonies  for  the  purpose  of  preserving 
the  common  rights  and  liberties  >of  all.  They  accordingly  author- 
ized general  hostilities  against  the  persons  and  property  of  British 
subjects ;  they  opened  an  extensive  commerce  with  foreign  coun- 
tries, regulating  the  whole  subject  of  imports  and  exports ;  they 
authorized  the  formation  of  new  governments  in  the  colonies  ;  and 
finally  they  exercised  the  sovereign  prerogative  of  dissolving  the 
allegiance  of  all  colonies  to  the  British  crown.  The  validity 
of  these  acts  was  never  doubted  or  denied  by  the  people.  On  the 
contrary,  they  became  the  foundation  upon  which  the  superstruct- 
ure of  the  liberties  and  independence  of  the  United  States  has 
been  erected.  Whatever,  then,  may  be  the  theories  of  ingenious 
men  on  the  subject,  it  is  historically  true  that  before  the  declara- 
tion of  independence  these  colonies  were  not,  in  any  absolute 
sense,  sovereign  states  ;  that  that  event  did  not  find  them  or  make 
them  such ;  but  that  at  the  moment  of  their  separation  they  were 
under  the  dominion  of  a  superior  controlling  national  government 
whose  powers  were  vested  in  and  exercised  by  the  general  Congress 
with  the  consent  of  the  people  of  all  the  States.^ 

§  215.  From  the  moment  of  the  declaration  of  independence,  if 
not  for  most  purposes  at  an  antecedent  period,  the  united  col- 
onies must  be  considered  as  being  a  nation  de  facto,  having  a  gen- 

1  This  whole  subject  is  very  amply  discussed  by  Mr.  Dane  in  his  Appendix  to  the  ninth 
volume  of  his  Abridgment  of  the  Laws ;  and  many  of  his  views  coincide  with  those 
stated  in  the  text.  The  whole  of  that  Appendix  is  worthy  of  the  perusal  of  every  con- 
stitutional lawyer,  even  though  he  might  differ  from  some  of  the  conclusions  of  the 
learned  author.  He  will  there  find  much  reasoning  from  documentary  evidence  of  a 
public  nature,  which  has  not  hitherto  been  presented  in  a  condensed  or  accurate  shape. 

Some  interesting  views  of  this  subject  are  also  presented  in  President  Monroe's  Mes- 
sage on  Internal  Improvements,  on  the  4th  of  May,  1822,  appended  to  his  Message 
respecting  the  Cumberland  Road.     See,  especially,  pages  8  and  9. 

When  Mr.  Chief  Justice  Marshall,  in  Ogden  v.  Gibbons,  (9  Wheat.  R.  187,)  admits 
that  the  States,  before  the  formation  of  the  Constitution,  were  sovereign  and  indepen- 
dent, and  were  connected  with  each  other  only  by  a  league,  it  is  manifest  that  he  uses 
the  word  "  sovereign  "  in  a  very  restricted  sense.  Under  the  confederation  there  were 
many  limitations  upon  the  powers  of  the  States. 


I 


CH.  I.]  HISTORY  OF  THE  REVOLUTION.  153 

eral  government  over  it,  created  and  acting  by  the  general  consent 
of  the  people  of  all  the  colonies.  The  powers  of  that  government 
were  not,  and  indeed  could  not  be,  well  defined.  But  still  its  ex- 
clusive sovereignty,  in  many  cases,  was  firmly  established  ;  and  its 
controlling  power  over  the  States  was  in  most,  if  not  in  all,  national 
measures  universally  admitted.^  The  Articles  of  Confederation, 
of  which  we  shall  have  occasion  to  speak  more  hereafter,  were  not 
prepared  or  adopted  by  Congress  until  November,  1777;^  they 
were  not  signed  or  ratified  by  any  of  the  States  until  July,  1778  ; 
and  they  were  not  ratified,  so  as  to  become  obligatory  upon  all  the 
States,  until  March,  1781.  In  the  intermediate  time.  Congress 
continued  to  exercise  the  powers  of  a  general  government,  whose 
acts  were  binding  on  all  the  States.  And  though  they  constantly 
admitted  the  States  to  be  "  sovereign  and  independent  communi- 
ties," 3  yet  it  must  be  obvious  that  the  terms  were  used  in  the 
subordinate  and  limited  sense  already  alluded  to ;  for  it  was  im- 
possible to  use  them  in  any  other  sense,  since  a  majority  of  the 
States  could  by  their  public  acts  in  Congress  control  and  bind  the 
minority.  Among  the  exclusive  powers  exercised  by  Congress 
were  the  power  to  declare  war  and  make  peace  ;  to  authorize  cap- 
tures ;  to  institute  appellate  prize  courts  ;  to  direct  and  control  all 
national,  military,  and  naval  operations ;  to  form  alliances  and 
make  treaties ;  to  contract  debts,  and  issue  bills  of  credit  upon 
national  account.  In  respect  to  foreign  governments,  we  were 
politically  known  as  the  United  States  only ;  and  it  was  in  our 
national  capacity,  as  such,  that  we  sent  and  received  ambassadors, 
entered  into  treaties  and  alliances,  and  were  admitted  into  the  gen- 
eral community  of  nations,  who  might  exercise  the  right  of  belliger- 
ents, and  claim  an  equality  of  sovereign  powers  and  prerogatives.* 
§  216.  In  confirmation  of  these  views,  it  may  not  be  without  use 
to  refer  to  the  opinions  of  some  of  our  most  eminent  judges,  de- 
livered on  occasions  which  required  an  exact  examination  of  the 
subject.  In  ChisholrrCs  Executors  v.  The  State  of  Georgia^  Mr. 
Chief  Justice  Jay,  who  was  equally  distinguished  as  a  Revolution- 

1  See  Penhallow  v.  Doane,  3  Dall.  R.  54 ;   Ware  v.  Hylton,  3  Dall.  190,  per  Chase,  J. 
See  the  Circular  Letter  of  Congress,  13th  Sept.,  1779 ;  5  Jour.  Cong.  341,  348,  349. 

2  Jour,  of  Cong.  1777,  p.  502. 

8  See  Letter  of  17th  Nov.,  1777,  by  Congress,  recommending  the  Articles  of  Confed- 
eration; Journal  of  1777,  p.  513,  514. 
*  1  Amer.  Museum,  15 ;  1  Kent,  Comm.  197,  198,  199. 
6  3  Dall.  419,  470. 


154  HISTORY  OF  THE  REVOLUTION.  [BOOK  11. 

ary  statesman  and  a  general  jurist,  expressed  himself  to  the 
following  effect :  "  The  Revolution,  or  rather  the  declaration  of 
independence,  found  the  people  already  united  for  general  purposes, 
and  at  the  same  time  providing  for  their  more  domestic  concerns 
by  State  conventions  and  other  temporary  arrangements.  From 
the  crown  of  Great  Britain  the  sovereignty  of  their  country  passed 
to  the  people  of  it ;  and  it  was  then  not  an  uncommon  opinion, 
that  the  unappropriated  lands  which  belonged  to  that  crown 
passed,  not  to  the  people  of  the  colony  or  States  within  whose 
limits  they  were  situated,  but  to  the  whole  people.  On  whatever 
principle  this  opinion  rested,  it  did  not  give  way  to  the  other ;  and 
thirteen  sovereignties  were  considered  as  emerging  from  the  princi- 
ples of  the  Revolution,  combined  by  local  convenience  and  consid- 
erations. The  people,  nevertheless,  continued  to  consider  them- 
selves, in  a  national  point  of  view,  as  one  people;  and  they 
continued  without  interruption  to  manage  their  national  concerns 
accordingly."  In  Penhallow  v.  Doane^  Mr.  Justice  Patterson 
(who  was  also  a  Revolutionary  statesman)  said,  speaking  of  the 
period  before  the  ratification  of  the  confederation  :  "  The  powers 
of  Congress  were  revolutionary  in  their  nature,  arising  out  of 
events  adequate  to  every  national  emergency,  and  coextensive  with 
the  object  to  be  attained.  Congress  was  the  general,  supreme,  and 
controlling  council  of  the  nation,  the  centre  of  force,  and  the  sun 
of  the  political  system.  Congress  raised  armies,  fitted  out  a  navy, 
and  prescribed  rules  for  their  government,  &c.,  &c.  These  high 
acts  of  sovereignty  were  submitted  to,  acquiesced  in,  and  approved 
of  by  the  people  of  America,  &c.,  &c.  The  danger  being  imminent 
and  common,  it  became  necessary  for  the  people  or  colonies  to 
coalesce  and  act  in  concert,  in  order  to  divert  or  break  the  violence 
of  the  gathering  storm.  They  accordingly  grew  into  union,  and 
formed  one  great  political  body,  of  which  Congress  was  the  direct- 
ing principle  and  soul,  &c.,  &c.  The  truth  is,  that  the  States,  indi- 
vidually, were  not  known  nor  recognized  as  sovereign  by  foreign 
nations,  nor  are  they  now.  The  States  collectively  under  Congress, 
as  their  connecting  point  or  head,  were  acknowledged  by  foreign 
powers  as  sovereign,  particularly  in  that  acceptation  of  the  term 
which  is  applicable  to  all  great  national  concerns,  and  in  the  exer- 
cise of  which  other  sovereigns  would  be  more  immediately  inter- 
ested."    In  Ware  v.  Hylton?  Mr.  Justice  Chase  (himself  also  a 

1  3  DaU.  54.  2  3  paU.  199. 


CH.  I.]  HISTORY   OF  THE  REVOLUTION.  l55 

Kevolutionary  statesman)  said  :  "  It  has  been  inquired,  what  pow- 
ers Congress  possessed  from  the  first  meeting  in  September,  1774, 
until  the  ratification  of  the  confederation  on  the  1st  of  March, 
1781.  It  appears  to  me  that  the  powers  of  Congress  during  that 
whole  period  were  derived  from  the  people  they  represented,  ex- 
pressly given  through  the  medium  of  their  State  conventions  or 
State  legislatures ;  or  that  after  they  were  exercised,  they  were 
impliedly  ratified  by  the  acquiescence  and  obedience  of  the  people, 
&c.  The  powers  of  Congress  originated  from  necessity,  and  arose 
out  of  it,  and  were  only  limited  by  events ;  or,  in  other  words, 
they  were  revolutionary  in  their  nature.  Their  extent  depended 
on  the  exigencies  and  necessities  of  public  affairs.  I  entertain  this 
general  idea,  that  the  several  States  retained  all  internal  sover- 
eignty ;  and  that  Congress  properly  possessed  the  rights  of  external 
sovereignty.  In  deciding  on  the  powers  of  Congress,  and  of  the 
several  States  before  the  confederation,  I  see  but  one  safe  rule, 
namely,  that  all  the  powers  actually  exercised  by  Congress  be- 
fore that  period  were  rightfully  exercised  on  the  presumption  not 
to  be  controverted,  that  they  were  so  authorized  by  the  people  they 
represented,  by  an  express  or  implied  grant ;  and  that  all  the 
powers  exercised  by  the  State  conventions  or  State  legislatures  were 
also  rightfully  exercised  on  the  same  presumption  of  authority 
from  the  people."  ^ 

§  217.  In  respect  to  the  powers  of  the  Continental  Congress 
exercised  before  the  adoption  of  the  Articles  of  Confederation,  few 
questions  were  judiciously  discussed  during  the  Revolutionary  con- 
test ;  for  men  had  not  leisure  in  the  heat  of  war  nicely  to  scrutinize 
or  weigh  such  subjects  ;  inter  arma  silent  leges.  The  people,  rely- 
ing on  the  wisdom  and  patriotism  of  Congress,  silently  acquiesced 
in  whatever  authority  they  assumed.  But  soon  after  the  organiza- 
tion of  the  present  government,  the  question  was  most  elaborately 
discussed  before  the  Supreme  Court  of  the  United  States,  in  a  case 
calling  for  an  exposition  of  the  appellate  jurisdiction  of  Congress 
in  prize  causes  before  the  ratification  of  the  confederation .^    The 

1  See  also  1  Kent,  Comm.  Lect.  10,  p.  196;  President  Monroe's  Exposition  and  Mes- 
sage, 4th  of  May,  1822,  p.  8,  9,  10,  11. 

2  Penhallow  v.  Doane,  3  Dall.  54,  80,  83,  90,  91,  94,  109,  110,  111,  112,  117 ;  Journals 
of  Congress,  March,  1779,  p.  86  to  88 ;  1  Kent,  Comm.  198,  199. 

[An  exceedingly  interesting  account  of  the  controversy  with  Pennsylvania  over  the 
jurisdiction  of  Congress  in  prize  causes,  and  of  the  part  taken  by  that  eminent  lawyer, 
Mr.  A.  J.  Dallas,  in  sustaining  the  Federal  authority,  will  be  found  in  the  Life  of  Mr. 
Dallas,  by  his  son  George  M.  Dallas,  page  95  et  seq.] 


15§  HISTORY  OF  THE  REVOLUTION.  [BOOK  U. 

result  of  that  examination  was,  as  the  opinions  already  cited  indi- 
cate, that  Congress,  before  the  confederation,  possessed,  by  the 
consent  of  the  people  of  the  United  States,  sovereign  and  supreme 
powers  for  national  purposes  ;  and  among  others  the  supreme  pow- 
ers of  peace  and  war,  and,  as  an  incident,  the  right  of  entertaining 
appeals  in  the  last  resort  in  prize  causes,  even  in  opposition  to 
State  legislation.  And  that  the  actual  powers  exercised  by  Con- 
gress, in  respect  to  national  objects,  furnisfied  the  best  exposition 
of  its  constitutional  authority,  since  they  emanated  from  the  repre- 
sentatives as  the  people,  and  were  acquiesced  in  by  the  people. 


CH.  II.]  ORIGIN  OF  THE  CONFEDERATION.  167 


I 


CHAPTER   II. 

ORIGIN  OF  THE   CONFEDERATION. 

§  218.  The  union,  thus  formed,  grew  out  of  the  exigencies  of 
the  times ;  and  from  its  nature  and  objects  might  be  deemed  tem- 
porary, extending  only  to  the  maintenance  of  the  common  liberties 
and  independence  of  the  States,  and  to  terminate  with  the  return 
of  peace  with  Great  Britain,  and  the  accomplishment  of  the  ends 
of  the  Revolutionary  contest.  It  was  obvious  to  reflecting  minds 
that  such  a  future  separation  of  the  States  into  absolute,  indepen- 
dent communities,  with  no  mutual  ties  or  controlling  national  gov- 
ernment, would  be  fraught  with  the  most  imminent  dangers  to 
their  common  safety  and  peace,  and  expose  them  not  only  to  the 
chance  of  reconquest  by  Great  Britain,  after  such  separation  in 
detached  contests,  but  also  to  all  the  hazards  of  internal  warfare 
and  civil  dissensions.  So  that  those  who  had  stood  side  by  side  in 
the  common  cause  against  Great  Britain  might  then,  by  the  in- 
trigues of  their  enemies  and  the  jealousies  always  incident  to 
neighboring  nations,  become  instruments  in  the  hands  of  the  am- 
bitious abroad  or  the  corrupt  at  home,  to  aid  in  the  mutual 
destruction  of  each  other ;  and  thus  all  successively  fall  the  vic- 
tims of  a  foreign  or  domestic  tyranny.  Such  considerations  could 
not  but  have  great  weight  with  all  honest  and  patriotic  citizens, 
independent  of  the  real  blessings  which  a  permanent  union  could 
not  fail  to  secure  throughout  all  the  States. 

§  219.  It  is  not  surprising,  therefore,  that  a  project  which,  even 
in  their  colonial  state,  had  been  so  often  attempted  by  some  of 
them  to  guard  themselves  against  the  evils  incident  to  their  politi- 
cal weakness  and  their  distance  from  the  mother  country,  and 
which  had  been  so  often  defeated  by  the  jealousy  of  the  crown  or 
of  the  colonies,^  should  at  a  very  early  period  have  occurred  to 
the  great  and  wise  men  who  assembled  in  the  Continental  Con- 
gress. 

§  220.   It  will  be  an  instructive  and  useful  lesson  to  us  to  trace 

1  2  Haz.  Coll.  1,  etc. ;  Id.  521  ;  2  Holmes's  Annals,  55  and  note;  Marshall,  Colon. 
284,  285,  464;  1  Kent,  Comm.  190,  191. 


168  HISTORY  OF  THE  CONFEDERATION.  [BOOK.  II. 

historically  the  steps  which  led  to  the  formation  and  final  adop- 
tion of  the  Articles  of  Confederation  and  perpetual  union  between 
the  United  States.  It  will  be  instructive,  by  disclosing  the  real 
difficulties  attendant  upon  such  a  plan,  even  in  times  when  the 
necessity  of  it  was  forced  upon  the  minds  of  men  not  only  by 
common  dangers,  but  by  common  protection,  by  common  feelings 
of  affection,  and  by  common  efforts  of  defence.  It  will  be  useful, 
by  moderating  the  ardor  of  inexperienced  minds,  which  are  apt  to 
imagine  that  the  theory  of  government  is  too  plain,  and  the  prin- 
ciples on  which  it  should  be  formed  too  obvious,  to  leave  much 
doubt  for  the  exercise  of  the  wisdom  of  statesmen  or  the  ingenu- 
ity of  speculatists  ;  nothing  is  indeed  more  difficult  to  foresee  than 
the  practical  operation  of  given  powers,  unless  it  be  the  practical 
operation  of  restrictions  intended  to  control  those  powers.  It  is 
a  mortifying  truth,  that  if  the  possession  of  power  sometimes  leads 
to  mischievous  abuses,  the  absence  of  it  also  sometimes  produces 
a  political  debility,  quite  as  ruinous  in  its  consequences  to  the 
great  objects  of  civil  government. 

§  221.  It  is  proposed,  therefore,  to  go  into  a  historical  review  of 
the  manner  of  the  formation  and  adoption  of  the  Articles  of  Con- 
federation. This  will  be  followed  by  an  exposition  of  the  general 
provisions  and  distributions  of  power  under  it.  And  this  will 
naturally  lead  us  to  a  consideration  of  the  causes  of  its  decline  and 
fall ;  and  thus  prepare  the  way  to  a  consideration  of  the  measures 
which  led  to  the  origin  and  final  adoption  of  the  present  Constitu- 
tion of  the  United  States.^ 

§  222.  On  the  11th  of  June,  1776,  the  same  day  on  which  the 
committee  for  preparing  the  Declaration  of  Independence  was  ap- 
pointed, Congress  resolved  that  "  a  committee  be  appointed  to  pre- 
pare and  digest  the  form  of  a  confederation  to  be  entered  into 
between  these  colonies  "  ;  and  on  the  next  day  a  committee  was 
accordingly  appointed,  consisting  of  a  member  from  each  colony .^ 
Nearly  a  year  before  this  period,  (viz.  on  the  21st  of  July,  1775,) 
Dr.  Franklin  had  submitted  to  Congress  a  sketch  of  articles  of 
confederation,  which  does  not,  however,  appear  to  have  been  acted 

1  The  first  volume  cf  the  United  States  Laws,  published  by  Bioren  and  Duane,  con- 
tains a  summary  view  of  the  proceedings  in  Congress  for  the  establishment  of  the  con- 
federation, and  also  of  the  convention  for  the  establishment  of  the  Constitution  of  the 
United  States.  And  the  whole  proceedings  are  given  at  large  in  the  first  volume  of  the 
Secret  Journals,  published  by  Congress  in  1821,  p.  283  et  seq. 

2  Journals  of  1776,  p.  207. 


CH.  II.]  ORIGIN   OF  THE   CONFEDERATION.  159 

on.  These  articles  contemplated  a  union  until  a  reconciliation 
with  Great  Britain,  and,  on  failure  thereof,  the  confederation  to  be 
perpetual. 

§  223.  On  the  12th  of  July,  1776,  the  committee  appointed  to 
prepare  Articles  of  Confederation  presented  a  draft,i  which  was  in 
the  handwriting  of  Mr.  Dickenson,  one  of  the  committee,  and  a 
delegate  from  Pennsylvania.  The  draft,  so  reported,  was  debated 
from  the  22d  to  the  31st  of  July,  and  on  several  days  between  the 
5th  and  20th  of  August,  1776.  On  this  last  day  Congress,  in 
committee  of  the  whole,  reported  a  new  draft,  which  was  ordered 
to  be  printed  for  the  use  of  the  members.^ 

§  224.  The  subject  seems  not  again  to  have  been  touched  until 
the  8th  of  April,  1777,  and  the  articles  were  debated  at  several 
times  between  that  time  and  the  15th  of  November  of  the  same 
year.  On  this  last  day  the  articles  were  reported  with  sundry 
amendments,  and  finally  adopted  by  Congress.  A  committee  was 
then  appointed  to  draft,  and  they  accordingly  drafted  a  circular 
letter,  requesting  the  States  respectively  to  authorize  their  dele- 
gates in  Congress  to  subscribe  the  same  in  behalf  of  the  State. 
The  committee  remark  in  that  letter  "  that  to  form  a  permanent 
union,  accommodated  to  the  opinions  and  wishes  of  the  delegates 
of  so  many  States,  differing  in  habits,  produce,  commerce,  and  in- 
ternal police,  was  found  to  be  a  work  which  nothing  but  time  and 
reflection,  conspiring  with  a  disposition  to  conciliate,  could  mature 
and  accomplish.  Hardly  is  it  to  be  expected  that  any  plan,  in  the 
variety  of  provisions  essential  to  our  union,  should  exactly  corre- 
spond with  the  maxims  and  political  views  of  every  particular  State. 
Let  it  be  remarked,  that  after  the  most  careful  inquiry  and  the 
fullest  information,  this  is  proposed,  as  the  best  which  could  be 
adapted  to  the  circumstances  of  all,  and  as  that  alone  which 
affords  any  tolerable  prospect  of  general  ratification.  Permit  us, 
then,  (add  the  committee,)  earnestly  to  recommend  these  articles 
to  the  immediate  and  dispassionate  attention  of  the  legislatures  of 
the  respective  States.  Let  them  be  candidly  reviewed  under  a 
sense  of  the  difficulty  of  combining,  in  one  general  system,  the 
various  sentiments  and  interests  of  a  continent,  divided  into  so 

1  The  draft  of  Dr.  Franklin,  and  this  draft,  understood  to  be  by  Mr.  Dickenson,  were 
never  printed  until  the  publication  of  the  Secret  Journals  by  order  of  Congress  in  1821, 
where  they  will  be  found  under  pages  283  and  290. 

2  Secret  Journals.  1776.  p.  304. 


160  HISTORY  OF  THE  CONFEDERATION.  [BOOK  II. 

many  sovereign  and  independent  communities,  under  a  conviction 
of  the  absolute  necessity  of  uniting  all  our  councils  and  all  our 
strength,  to  maintain  and  defend  our  common  liberties.  Let  them 
be  examined  with  a  liberality  becoming  brethren  and  fellow-citi- 
zens, surrounded  by  the  same  imminent  dangers,  contending  for 
the  same  illustrious  prize,  and  deeply  interested  hi  being  forever 
bound  and  connected  together  by  ties  the  most  intimate  and  indis- 
soluble. And,  finally,  let  them  be  adjusted  with  the  temper  and  the 
magnanimity  of  wise  and  patriotic  legislators,  who,  while  they  are 
concerned  for  the  prosperity  of  their  own  more  immediate  circle, 
are  capable  of  rising  superior  to  local  attachments,  when  they  may 
be  incompatible  with  the  safety,  happiness^  and  glory  of  the  gen- 
eral confederacy." 

§  225.  Such  was  the  strong  and  eloquent  appeal  made  to  the 
States.  It  carried,  however,  very  slowly,  conviction  to  the  minds 
of  the  local  legislatures.  Many  objections  were  stated,  and  many 
amendments  were  proposed.  All  of  them,  however,  were  rejected 
by  Congress,  not  probably  because  they  were  all  deemed  inexpe- 
dient or  improper  in  themselves,  but  from  the  danger  of  sending 
the  instrument  back  again  to  all  the  States  for  reconsideration. 
Accordingly,  on  the  26th  of  June,  1778,  a  copy,  engrossed  for 
ratification,  was  prepared,  and  the  ratification  begun  on  the  9th 
day  of  July  following.  It  was  ratified  by  all  the  States,  except 
Delaware  and  Maryland,  in  1778  ;  by  Delaware  in  1779,  and  by 
Maryland  on  the  1st  of  March,  1781,  from  which  last  date  its 
final  ratification  took  effect,  and' was  joyfully  announced  by  Con- 
gress.^ 

§  226.  In  reviewing  the  objections  taken  by  the  various  States 
to  the  adoption  of  the  confederation  in  the  form  in  which  it  was- 
presented  to  them,  at  least  so  far  as  those  objections  can  be  gath- 
ered from  the  official  acts  of  those  States,  or  their  delegates  in 
Congress,  some  of  them  will  appear  to  be  founded  upon  a  desire  for 
verbal  amendments  conducing  to  greater  accuracy  and  certainty ; 
and  some  of  them  upon  considerations  of  a  more  large  and  im- 
portant bearing  upon  the  interests  of  the  States  respectively,  or 
of  the  Union. 2  Among  the  latter  were  the  objections  taken  and 
alterations  proposed  in  respect  to  the  apportionment  of  taxes, 
and  of  the  quota  of  public  forces  to  be  raised  among  the  States, 

1  Secret  Journals,  401,  418,  423,  424,  426  ;  3  Kent's  Comm.  196,  197. 

2  2  Pitk.  Hist.  ch.  11,  p.  19  to  36 ;  1  Kent's  Comm.  197,  198. 


CH.  II.]  ORIGIN  OF  THE  CONFEDERATION.  161 

by  Massachusetts,  Connecticut,  New  Jersey,  and  Pennsylvania.^ 
There  was  also  an  abundance  of  jealousy  of  the  power  to  keep 
up  a  standing  army  in  time  of  peace .^ 

§  227.  But  that  which  seemed  to  be  of  paramount  importance, 
and  which,  indeed,  protracted  the  ratification  of  the  confederation 
to  so  late  a  period,  was  the  alarming  controversy  in  respect  to  the 
boundaries  of  some  of  the  States  and  the  public  lands  held  by  the 
crown  within  those  reputed  boundaries.  On  the  one  hand,  the 
great  States  contended  that  each  of  them  had  an  exclusive  title 
to  all  the  lands  of  the  crown  within  its  boundaries ;  and  these 
boundaries,  by  the  claims  under  some  of  the  charters,  extended  to 
the  South  Sea,  or  to  an  indefinite  extent  into  the  uncultivated 
western  wilderness.  On  the  other  hand,  the  other  States  as  stren- 
uously contended  that  the  territory,  unsettled  at  the  commence- 
ment of  the  war,  and  claimed  by  the  British  crown,  which  was 
ceded  to  it  by  the  treaty  of  Paris  of  1763,  if  wrested  from  the 
common  enemy  by  the  blood  and  treasure  of  the  thirteen  States, 
ought  to  be  deemed  a  common  property,  subject  to  the  disposition 
of  Congress  for  the  general  good.^  Rhode  Island,  Delaware,  New 
Jersey,  and  Maryland  insisted  upon  some  provision  for  establish- 
ing the  western  boundaries  of  the  States,  and  for  the  recognition 
of  the  unsettled  western  territory  as  the  property  of  the  Union. 

§  228.  The  subject  was  one  of  a  perpetually  recurring  interest 
and  irritation,  and  threatened  a  dissolution  of  the  confederacy. 
New  York,  at  length,  in  February,  1780,  passed  an  act  author- 
izing a  surrender  of  a  part  of  the  western  territory  claimed  by 
her.  Congress  embraced  the  opportunity,  thus  afforded,  to  ad- 
dress the  States  on  the  subject  of  ceding  the  territory,  reminding 
them  "  how  indispensably  necessary  it  is  to  establish  the  Federal 
Union  on  a  fixed  and  permanent  basis,  and  on  principles  accepta- 
ble to  all  its  respective  members ;  how  essential  to  public  credit 
and  confidence,  to  the  support  of  our  army,  to  the  vigor  of  our 
councils,  and  the  success  of  our  measures  ;  to  our  tranquillity  at 
home,  our  reputation  abroad ;  to  our  very  existence  as  a  free, 
sovereign,  and  independent  people."  They  recommended,  with 
earnestness,  a  cession  of  the  western  territory ;  and  at  the  same 
time  they  as  earnestly  recommended  to  Maryland  to  subscribe  the 

1  Secret  Journals,  371,  373,  376,  378,  381  ;  2  Pitk.  Hist.  ch.  11,  p.  19  to  32. 

2  Secret  Journals,  373,  376,  383  ;  2  Pitk.  Hist.  ch.  11,  p.  19  to  32. 
8  2  Dall.  R.  470,  per  Jay,  C.  J. ;  2  Pitk.  Hist.  ch.  11,  p.  19  to  36. 

VOL.  I.  11 


162  HISTORY  OF  THE  CONFEDERATION.  [BOOK  H. 

Articles  of  Confederation.^  A  cession  was  accordingly  made  by 
the  delegates  of  New  York  on  the  1st  of  March,  1781,  the  very 
day  on  which  Maryland  acceded  to  the  confederation.  Virginia 
had  previously  acted  upon  the  recommendation  of  Congress ;  and 
by  subsequent  cessions  from  her,  and  from  the  States  of  Massa- 
chusetts, Connecticut,  South  Carolina,  and  Georgia,  at  still  later 
periods,  this  great  source  of  national  dissension  was  at  last  dried 
up.* 

1  Secret  Journals,  6  Sept.,  1780,  p.  442 ;  1  Kent's  Comm.  197,  198  ;  2  Pitk.  Hist.  ch. 
11,  p.  19  to  36. 

2  The  history  of  these  cessions  will  be  found  in  the  Introduction  to  the  Land  Laws 
of  the  United  States,  printed  by  order  of  Congress  in  1810,  1817,  and  1828;  and  in  the 
first  volume  of  the  Laws  of  the  United  States,  printed  by  Bioren  and  Duane  in  1815, 
p.  452,  &c. 

[This  subject  is  considered  somewhat  by  Mr.  Hiyes  in  his  Life  of  Madison,  I.  257 
€t  seq.    See  Hildreth,  Hist  of  U.  S.  III.  398.] 


CH  III.]       ANALYSIS  OF  THE  ARTICLES  OF  CONFEDERATION.  163 


CHAPTER    III. 

ANALYSIS   OP  THE   ARTICLES   OF   CONFEDERATION. 

§  229.  In  pursuance  of  the  design  already  announced,  it  is  now 
proposed  to  give  an  analysis  of  the  Articles  of  Confederation,  or, 
as  they  are  denominated  in  the  instrument  itself,  the  "  Articles  of 
Confederation  and  Perpetual  Union  between  the  States,"  as  they 
were  finally  adopted  by  the  thirteen  States  in  1781. 

§  230.  The  style  of  the  confederacy  was  by  the  first  article 
declared  to  be  "  The  United  States  of  America."  The  second 
article  declared  that  each  State  retained  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and  right  which 
was  not  by  this  confederation  expresdy  delegated  to  the  United 
States  in  Congress  assembled.  The  third  article  declared  that 
the  States  severally  entered  into  a  firm  league  of  friendship  with 
each  other,  for  their  common  defence,  the  security  of  their  liber- 
ties, and  their  mutual  and  general  welfare,  binding  themselves  to 
assist  each  other  against  all  force  ofiered  to  or  attacks  made  upon 
them,  or  any  of  them,  on  account  of  religion,  sovereignty,  trade, 
or  any  other  pretence  whatever.  The  fourth  article  declared  that 
the  free  inhabitants  of  each  of  the  States  (vagabonds  and  fugitives 
from  justice  excepted)  should  be  entitled  to  all  the  privileges  of 
free  citizens  in  the  several  States  ;  that  the  people  of  each  State 
should  have  free  ingress  and  regress  to  and  from  any  other  State, 
and  should  enjoy  all  the  privileges  of  trade  and  commerce,  subject 
to  the  same  duties  and  restrictions  as  the  inhabitants  ;  that  fugi- 
tives from  justice  should,  upon  demand  of  the  executive  of  the 
State  from  which  they  fled,  be  delivered  up ;  and  that  full  faith 
and  credit  should  be  given  in  each  of  the  States,  to  the  records, 
acts,  and  judicial  proceedings  of  the  courts  and  magistrates  of 
every  other  State. 

§  231.  Having  thus  provided  for  the  security  and  intercourse 
of  the  States,  the  next  article  (5th)  provided  for  the  organization 
of  a  general  Congress,  declaring  that  delegates  should  be  chosen 
in  such  manner  as  the  legislature  of  each  State  should  direct,  to 
meet  in  Congress  on  the  first  Monday  in  every  year,  with  a  power 


164  HISTORY  OF  THE  CONFEDERATION.  [BOOK  H. 

reserved  to  each  State,  to  recall  any  or  all  of  the  delegates,  and  to 
send  others  in  their  stead.  No  State  was  to  be  represented  in 
Congress  by  less  than  two  nor  more  than  seven  members.  No 
delegate  was  eligible  for  more  than  three,  in  any  term  of  six 
years ;  and  no  delegate  was  capable  of  holding  any  office  of  emolu 
ment  under  the  United  States.  Each  State  was  to  maintain  its 
own  delegates,  and  in  determining  questions  in  Congress  was  to 
have  one  vote.  Freedom  of  speech  and  debate  in  Congress  was 
not  to  be  impeached  or  questioned  in  any  other  place  ;  and  the 
members  were  to  be  protected  from  arrest  and  imprisonment  dur- 
ing the  time  of  their  going  to  and  from,  and  attendance  on  Con- 
gress, except  for  treason,  felony,  or  breach  of  the  peace. 

§  232.  By  subsequent  articles  Congress  was  invested  with  the 
sole  and  exclusive  right  and  power  of  determining  on  peace  and 
war,  unless  in  case  of  an  invasion  of  a  State  by  enemies,  or  an 
imminent  danger  of  an  invasion  by  Indians ;  of  sending  and  re- 
ceiving ambassadors ;  entering  into  treaties  and  alliances,  under 
certain  limitations,  as  to  treaties  of  commerce  ;  ^  of  establishing 
rules  for  deciding  all  cases  of  capture  on  land  and  water,  and  for 
the  division  and  appropriation  of  prizes  taken  by  the  land  or  naval 
forces  in  the  service  of  the  United  States  ;  of  granting  letters  of 
marque  and  reprisal  in  times  of  peace ;  of  appointing  courts  for 
the  trial  of  piracies  and  felonies  committed  on  the  high  seas ;  and 
of  establishing  courts  for  receiving  and  finally  determining  appeals 
in  all  cases  of  captures. 

§  233.  Congress  was  also  invested  with  power  to  decide  in  the 
last  resort,  on  appeal,  all  disputes  and  difierences  between  two  or 
more  States  concerning  boundary,  jurisdiction,  or  any  other  cause 
whatsoever ;  and  the  mode  of  exercising  that  authority  was  spe- 
cially prescribed.  And  all  controversies  concerning  the  private 
right  of  soil,  claimed  under  different  grants  of  two  or  more  States 
before  the  settlement  of  their  jurisdiction,  were  to  be  finally  de- 
termined in  the  same  manner,  upon  the  petition  of  either  of  the 
grantees.  But  no  State  was  to  be  deprived  of  territory  for  the 
benefit  of  the  United  States. 

§  234.   Congress  was  also  invested  with  the  sole  and  exclusive 

1  "  No  treaty  of  commerce  shall  be  made,  whereby  the  legislative  power  of  the  States 
shall  be  restrained  from  imposing  such  imposts  and  duties  on  foreigners  as  their  own 
people  are  subjected  to,  or  from  prohibiting  the  exportation  or  importation  of  any 
species  of  goods  or  commodities  whatsoever."    Art.  IX. 


CH.  m.]        ANALYSIS   OF   THE  ARTICLES   OF   CONFEDERATION.  165 

right  and  power  of  regulating  the  alloy  and  value  of  coin  struck 
by  their  own  authority,  or  that  of  the  United  States  ;  of  fixing  the 
standard  of  weights  and  measures  throughout  the  United  States ; 
of  regulating  the  trade  and  managing  all  affairs  with  the  Indians, 
not  members  of  any  of  the  States,  provided  that  the  legislative 
right  of  any  State  within  its  own  limits  should  not  be  infringed  or 
violated  ;  of  establishing  and  regulating  post-offices  from  one  State 
to  another,  and  exacting  postage  to  defray  the  expenses ;  of  ap- 
pointing.all  officers  of  the  land  forces  in  the  service  of  the  United 
States,  except  regimental  officers  ;  of  appointing  all  officers  of  the 
naval  forces,  and  commissioning  all  officers  whatsoever  in  the  ser- 
vice of  the  United  States  ;  and  of  making  rules  for  the  government 
and  regulation  of  the  land  and  naval  forces,  and  directing  their 
operations. 

§  235.  Congress  was  also  invested  with  authority  to  appoint  a 
committee  of  the  States  to  sit  in  the  recess  of  Congress,  and  to  con- 
sist of  one  delegate  from  each  State,  and  other  committees  and 
civil  officers,  to  manage  the  general  affairs  under  their  direction ; 
to  appoint  one  of  their  number  to  preside,  but  no  person  was  to 
serve  in  the  office  of  president  more  than  one  year  in  the  term  of 
three  years  ;  to  ascertain  the  necessary  sums  for  the  public  service, 
and  to  appropriate  the  same  for  defraying  the  public  expenses ;  to 
borrow  money,  and  emit  bills  on  the  credit  of  the  United  States  ; 
to  build  and  equip  a  navy  ;  to  agree  upon  the  number  of  land  forces 
and  make  requisitions  upon  each  State  for  its  quota,  in  proportion 
to  the  number  of  white  inhabitants  in  such  State.  The  legislature 
of  each  State  were  to  appoint  the  regimental  officers,  raise  the  men, 
and  clothe,  arm,  and  equip  them  at  the  expense  of  the  United 
States. 

§  236.  Congress  was  also  invested  with  power  to  adjourn  for 
any  time  not  exceeding  six  months,  and  to  any  place  within  the 
United  States ;  and  provision  was  made  for  the  publication  of  its 
journal,  and  for  entering  the  yeas  and  nays  thereon,  when  desired 
by  any  delegate. 

§  237.  Such  were  the  powers  confided  in  Congress.  But  even 
these  were  greatly  restricted  in  their  exercise  ;  for  it  was  expressly 
provided  that  Congress  should  never  engage  in  a  war ;  nor  grant 
letters  of  marque  or  reprisal  in  time  of  peace  ;  nor  enter  into  any 
treaties  or  alliances  ;  nor  coin  money,  or  regulate  the  value  there- 
of ;  nor  ascertain  the  sums  or  expenses  necessary  for  the  defence 


166  HISTORY   OF  THE   CONFEDERATION.  [BOOK  H. 

and  welfare  of  the  United  States ;  nor  emit  bills ;  nor  borrow 
money  on  the  credit  of  the  United  States  ;  nor  appropriate  money ; 
nor  agree  upon  the  number  of  vessels  of  war  to  be  built  or  pur- 
chased ;  or  the  number  of  land  or  sea  forces  to  be  raised ;  nor 
appoint  a  commander-in-chief  of  the  army  or  navy ;  unless  nine 
States  should  assent  to  the  same.  And  no  question  on  any  other 
point,  except  for  adjourning  from  day  to  day,  was  to  be  determined, 
except  by  the  vote  of  a  majority  of  the  States. 

§  238.  The  committee  of  the  States,  or  any  nine  of  them,  were 
authorized  in  the  recess  of  Congress  to  exercise  such  powers  as 
Congress,  with  the  assent  of  nine  States,  should  think  it  expedient 
to  vest  them  with,  except  such  powers,  for  the  exercise  of  which, 
by  the  Articles  of  Confederation,  the  assent  of  nine  States  was  re- 
quired, which  could  not  be  thus  delegated. 

§  239.  It  was  further  provided,  that  all  bills  of  credit,  moneys 
borrowed,  and  debts  contracted  by  or  under  the  authority  of  Con- 
gress before  the  confederation,  should  be  a  charge  against  the 
United  States  ;  that  when  land  forces  were  raised  by  any  State  for 
the  common  defence,  all  officers  of  or  under  the  rank  of  colonel 
should  be  appointed  by  the  legislature  of  the  State,  or  in  such 
manner  as  the  State  should  direct ;  and  all  vacancies  should  be 
filled  up  in  the  same  manner ;  that  all  charges  of  war,  and  all 
other  expenses  for  the  common  defence  or  general  welfare,  should 
be  defrayed  out  of  a  common  treasury,  which  should  be  supplied 
by  the  several  States,  in  proportion  to  the  value  of  the  land  within 
each  State  granted  or  surveyed,  and  the  buildings  and  improve- 
ments thereon,  to  be  estimated  according  to  the  mode  prescribed 
by  Congress  ;  and  the  taxes  for  that  proportion  were  to  be  laid  and 
levied  by  the  legislatures  of  the  States  within  the  time  agreed  upon 
by  Congress. 

§  240.  Certain  prohibitions  were  laid  upon  the  exercise  of  pow- 
ers by  the  respective  States.  No  State,  without  the  consent  of  the 
United  States,  could  send  an  embassy  to,  or  receive  an  embassy 
from,  or  enter  into  any  treaty  with  any  king,  prince,  or  state  ; 
nor  could  any  person  holding  any  office  under  the  United  States, 
or  any  of  them,  accept  any  present,  emolument,  office,  or  title, 
from  any  foreign  king,  prince,  or  state ;  nor  could  Congress 
itself  grant  any  title  of  nobility.  No  two  States  could  enter 
into  any  treaty,  confederation,  or  alliance  with  each  other,  with- 
out the  consent  of  Congress.     No  State  could  lay  any  imposts 


CH.  m.]        ANALYSIS  OF  THE  ARTICLES   OF  CONFEDERATION.  167 

or  duties  which  might  interfere  with  any  then  proposed  trea- 
ties. No  vessels  of  war  were  to  be  kept  up  by  any  State  in 
time  of  peace,  except  deemed  necessary  by  Congress  for  its  de- 
fence or  trade,  nor  any  body  of  forces,  except  such  as  should  be 
deemed  requisite  by  Congress  to  garrison  its  forts,  and  neces- 
sary for  its  defence.  But  every  State  was  required  always  to  keep 
up  a  well-regulated  and  disciplined  militia,  sufficiently  armed  and 
accoutred,  and  to  be  provided  with  suitable  field-pieces  and  tents, 
and  arms  and  ammunition  and  camp  equipage.  No  State  could 
engage  in  war  without  the  consent  of  Congress,  unless  actually 
invaded  by  enemies,  or  in  danger  of  invasion  by  the  Indians.  Nor 
could  any  State  grant  commissions  to  any  ships  of  war,  nor  letters 
of  marque  and  reprisal,  except  after  a  declaration  of  war  by  Con- 
gress, unless  such  State  were  infested  by  pirates,  and  then  subject 
to  the  determination  of  Congress.  No  State  could  prevent  the 
removal  of  any  property  imported  into  any  State,  to  any  other 
State,  of  which  the  owner  was  an  inhabitant.  And  no  imposition, 
duties,  or  restriction  could  be  laid  by  any  State  on  the  property  of 
the  United  States  or  of  either  of  them. 

§  241.  There  was  also  provision  made  for  the  admission  of  Can- 
ada into  the  Union,  and  of  other  colonies  with  the  assent  of  nine 
States.  And  it  was  finally  declared  that  every  State  should  abide 
by  the  determinations  of  Congress  on  all  questions  submitted  to  it 
by  the  confederation ;  that  the  articles  should  be  inviolably  ob- 
served by  every  State  ;  that  the  union  should  he  perpetual ;  and  that 
no  alterations  should  be  made  in  any  of  the  articles,  unless  agreed 
to  by  Congress,  and  confirmed  by  the  legislatures  of  every  State. 

§  242.  Such  is  the  substance  of  this  celebrated  instrument, 
under  which  the  treaty  of  peace,  acknowledging  our  independence, 
was  negotiated,  the  war  of  the  Revolution  concluded,  and  the  union 
of  the  States  maintained  until  the  adoption  of  the  present  Consti- 
tution. 


168  HISTORY  OF  THE  CONFEDERATION.  [BOOK  II. 


CHAPTER    IV. 

DECLINE  AND  FALL  OF  THE  CONFEDERATION. 

§  243.  Any  survey,  however  slight,  of  the  confederation  will 
impress  the  mind  with  the  intrinsic  difficulties  which  attended  the 
formation  of  its  principal  features.  It  is  well  known  that  upon 
three  important  points,  touching  the  common  rights  and  interests 
of  the  several  States,  much  diversity  of  opinion  prevailed,  and 
many  animated  discussions  took  place.  The  first  was,  as  to  the 
mode  of  voting  in  Congress,  whether  it  should  be  by  States,  or 
according  to  wealth  or  population.  The  second,  as  to  the  rule  by 
which  the  expenses  of  the  Union  should  be  apportioned  among. the 
States.  And  the  third,  as  has  been  already  seen,  relative  to  the 
disposal  of  the  vacant  and  unappropriated  lands  in  the  western 
territory.^ 

§  244.  But  that  which  strikes  us  with  most  force  is  the  un- 
ceasing jealousy  and  watchfulness  everywhere  betrayed  in  respect 
to  the  powers  to  be  confided  to  the  general  government.  For  this 
several  causes  may  be  assigned.  The  colonies  had  been  long  en- 
gaged in  struggles  against  the  superintending  authority  of  the 
crown,  and  had  practically  felt  the  inconveniences  of  the  restric- 
tive legislation  of  the  parent  country.  These  struggles  had  nat- 
urally led  to  a  general  feeling  of  resistance  to  all  external  author- 
ity ;  and  these  inconveniences  to  extreme  doubts,  if  not  to  4read 
of  any  legislation  not  exclusively  originating  in  their  domestic 
assemblies.  They  had,  as  yet,  not  felt  the  importance  or  necessity 
of  union  among  themselves,  having  been  hitherto  connected  with 
the  British  sovereignty  in  all  their  foreign  relations.  What  would 
be  their  fate  as  separate  and  independent  communities  ;  how  far 
their  interests  would  coincide  or  vary  from  each  other  as  such ; 
what  would  be  the  efiects  of  the  Union  upon  their  domestic  peace, 
their  territorial  interests,  their  external  commerce,  their  political 
security,  or  their  civil  liberty,  —  were  points  to  them  wholly  of  a 
speculative  character,  in  regard  to  which  various  opinions  might 

1  2  Pitk.  Hist.  16.  [Tucker,  Hist,  of  U.  S.  I.  311  ;  Hildreth,  Hist,  of  U.  S.  HI 
398.] 


CH.  IV.]  DECLINE  AND  FALL   OF  THE   CONFEDERATION.  169' 

be  entertained,  and  various  and  even  opposite  conjectures  formed 
upon  grounds  apparently  of  equal  plausibility.  They  were  smart- 
ing, too,  under  the  severe  sufferings  of  war  ;  and  hardly  had  time 
to  look  forward  to  the  future  events  of  a  peace  ;  or  if  they  did,  it 
would  be  obviously  a  period  for  more  tranquil  discussions,  and  for 
a  better  understanding  of  their  mutual  interests.  They  were  sud- 
denly brought  together,  not  so  much  by  any  deliberate  choice  of  a 
permanent  union,  as  by  the  necessity  of  mutual  co-operation  and 
support  in  resistance  of  the  measures  of  Great  Britain.  They 
found  themselves,  after  having  assembled  a  general  Congress  for 
mutual  advice  and  encouragement,  compelled  by  the  course  of 
events  to  clothe  that  body  with  sovereign  powers  in  the  most  irreg- 
ular and  summary  manner,  and  to  permit  them  to  assert  the  gen- 
eral prerogatives  of  peace  and  war,  without  any  previous  compact, 
and  sanctioned  only  by  the  silent  acquiescence  of  the  people. 
Under  such  circumstances  each  State  felt  that  it  was  the  true 
path  of  safety  to  retain  all  sovereign  powers  within  its  own  con- 
trol, the  surrender  of  which  was  not  clearly  seen,  under  existing 
circumstances,  to  be  demanded  by  an  imperious  public  neces- 
sity.^ 

§  245.  Notwithstanding  the  declaration  of  the  articles,  that  the 
union  of  the  States  was  to  be  perpetual,  an  examination  of  the 
powers  confided  to  the  general  government  would  easily  satisfy  us 
that  they  looked  principally  to  the  existing  revolutionary  state  of 
things.  The  principal  powers  respected  the  operations  of  war,  and 
would  be  dormant  in  times  of  peace.  In  short.  Congress  in  peace 
was  possessed  of  but  a  delusive  and  shadowy  sovereignty,  with  little 
more  than  the  empty  pageantry  of  office.  They  were  indeed  clothed 
with  the  authority  of  sending  and  receiving  ambassadors  ;  of  enter- 
ing into  treaties  and  alliances,  of  appointing  courts  for  the  trial  of 
piracies  and  felonies  on  the  high  seas ;  of  regulating  the  public 
coin  ;  of  fixing  the  standard  of  weights  and  measures ;  of  regu- 

1  Dr.  Rush,  in  apologizing  for  the  defects  of  the  confederation,  has  observed,  "  The 
confederation,  together  with  most  of  our  State  constitutions,  was  formed  under  very 
unfavorable  circumstances.  We  had  just  emerged  from  a  corrupted  monarchy.  Al- 
though we  understood  perfectly  the  principles  of  liberty,  yet  most  of  us  were  ignorant 
of  the  forms  and  combinations  of  power  in  republics.  Add  to  this  the  British  army  in 
the  heart  of  our  country,  spreading  desolation  wherever  it  went."  1  Amer.  Museum, 
8.  See  also  1  Amer.  Museum,  270.  The  North  American  Review,  for  Oct.,  1827,  con- 
tains a  summary  of  some  of  the  prominent  defects  of  the  confederation.  Art.  L  p.  249, 
&c.    [And  see  History  of  the  Constitution  by  Curtis,  B.  II.] 


170  mSTOBY  OF  THE  OOKFEDEBATION.  [BOOK  Q. 

lating  trade  with  tlie  Indians ;  of  establishing  post^ffioes ;  of  bor- 
rowing money,  and  emitting  bills  on  the  credit  of  the  United 
States ;  of  ascertaining  and  appropriating  tlie  suma  necetuujrj  tor 
defraying  the  public  expenses,  and  of  disposing  of  the  western  ter- 
ritory. And  most  of  tliese  [X)weni  required  for  their  exercise  the 
assent  of  nine  States.  But  they  possested  not  the  power  to  raise 
any  revenue,  to  levy  any  tax,  to  enforce  any  law,  to  secure  any 
right,  to  regulate  any  trade,  or  even  the  poor  prerogative  of  com- 
manding means  to  pay  its  own  ministers  at  a  foreign  court.  They 
could  contract  debts,  but  they  were  witliout  means  to  discharge 
tliem.  Tliey  could  pledge  the  public  faith,  but  they  were  incapa- 
ble of  redeeming  it.  They  could  enter  into  treaties,  but  every 
State  in  the  Union  might  disobey  them  with  impunity.  They 
could  contract  alliances,  but  could  not  command  men  or  money  to 
give  them  vigor.  They  could  institute  courts  for  piracies  and  fel- 
onies on  the  high  seas,  but  they  liad  no  means  to  pay  eitlier  the 
judges  or  the  jurors.  In  short,  all  powers  which  did  not  execute 
themselves  were  at  the  mercy  of  the  States,  and  might  be  tram- 
pled upon  at  will  with  impunity. 

§246.  One  of  our  leading  writers  addressed  the  following 
strong  language  to  the  public : *  "By  this  political  compact  the 
United  States  in  Congress  have  exclusive  power  for  the  following 
purposes,  without  being  able  to  execute  one  of  them.  They  may 
make  and  conclude  treaties,  but  can  only  recommend  the  observ- 
ance of  them.  They  may  appoint  ambassadors,  but  cannot  defray 
even  the  expenses  of  their  tables.  They  may  borrow  money  in 
tlieir  own  name  on  the  faith  of  the  Union,  but  cannot  pay  a  dol- 
lar. They  may  coin  money,  but  they  cannot  purchase  an  ounce  of 
bullion.  They  may  make  war,  and  determine  what  nuuil>er  of 
troops  are  necessary,  but  cannot  raise  a  single  soldier.  In  shortf 
they  may  declare  everything^  hut  do  nothing** * 

§  247.  Strong  as  this  language  may  seem,  it  has  no  coloring 
beyond  what  the  naked  truth  would  justify.*    Washington  himself, 

1  1  Amer.  Mas.  1786,  p.  270. 

*  T^mgnage  equallj  strong,  and  almost  identical  in  expression,  will  be  fonnd  in  Mr. 
J»y*f  Letter,  addressed  to  the  i>eople  of  New  York,  1787  ;  3  Amer.  Museum,  554,  556. 

*  Mr.  Justice  Patterson,  in  Hylton  v.  77*e  United  Statex,  3  Dall.  176,  after  remarking 
tb&t  Congress,  under  the  confederation,  had  no  coercive  authorit}",  said,  "  IlequisitioD* 
wen  «  dead  letter,  unices  the  State  legislatures  oould  be  brought  into  action ;  and  when 
they  were,  the  sums  raised  were  very  disproportionaL" 

[Mr.  Jefferson  was  of  opinion  that  the  confederation  possessed  powers  of  coercion  by 


CH.  IV.]     DECLINE  AND  FALL  OP  THE  CONFEDERATION.       171 

that  patriot  without  stain  or  reproach,  speaks  in  1785  witli  un- 
usual significancy  on  the  sojue  subject.  **  In  a  woi*d,"  says  he, 
"  the  confedomtion  appears  to  mo  to  bo  little  raoro  than  a  shadow 
without  the  substance ;  and  Congress  a  nugatory  body,  tlieir  ordi- 
nances being  little  attended  to."  ^  The  same  sentiments  may  bo 
found  in  many  public  documents.'  One  of  the  most  humiliating 
proofs  of  the  utter  inability  of  Congi*ess  to  enforce  even  the  exclu- 
sive powers  vested  in  it  is  to  be  found  in  tlie  argmnentativo  circu- 
lar, addressed  by  it  to  the  several  States,  in  April,  1787,  enti'oat- 
ing  tlioni  in  the  most  supplicating  manner  to  repeal  such  of  their 
laws  as  interfered  with  tiio  treaties  with  foreign  nations,*  "  If  in 
theory,**  says  the  historian  of  Washiugton,  *'  the  treaties  formed 
by  Congress  were  obligatory,  yet  it  had  l)een  demonstrated  that 
in  pmctice  that  body  was  absolutely  unable  to  carry  tliem  into 
execution.**  * 

§  *248.  The  leading  defects  of  the  confederation  may  bo  enu- 
merated under  the  following  heads :  — 

In  the  first  place,  there  was  an  utter  wont  of  all  coercive  authoi^ 
ity  to  cai'ry  into  effect  its  own  constitutional  measures.*  This,  of 
itself,  was  sufficient  to  destroy  its  whole  efficiency,  as  a  superin- 
tending government,  if  tliat  may  be  called  a  government  which 
possessed  no  one  solid  attribute  of  power.  It  has  been  justly  ob- 
served that,  *'  a  government  authorized  to  decloi'o  war,  but  relying 
on  independent  States  for  the  means  of  prosecuting  it ;  capable  of 
contracting  debts,  and  of  pledging  the  public  faith  for  their  pay- 
ment, but  depending  on  thirteen  distinct  sovereignties  for  the 
preservation  of  that  faith,  could  only  bo  rescued  from  ignominy 
and  contempt  by  finding  those  sovereignties  administered  by  men 

means  of  which  the  obligations  of  the  sevonU  States  might  be  onlbrcett.  JeftVrson'a 
Works,  IX.  291.  But  as  suoh  powers,  if  j>ossessed,  oould  only  be  exercised  against  the 
States  as  States,  the  process  of  oooreion  must  necessarily  be  such  as  independent  nations 
resort  to  under  similar  ciivumstanees,  that  is  to  say,  the  display  or  exeri'ise  of  military 
or  naval  force,  the  seizure  and  confiscation  of  property,  the  laying  of  embargoes  upon 
commeive  or  intercourse,  &c,  ;  and  the  very  exercise  of  such  coercive  authority,  wich  a 
view  to  enforce  the  objects  of  the  Union,  would  almost  of  necessity  result  in  ita  over- 
throw.    See  Life  and  Correspondence  of  James  Iredell,  II.  193.] 

1  5  Mai-almU's  Life  of  Washington,  64.  See  also  3  Pitk.  Hist.  917  j  North  Amer. 
Rev.  Oct.  1837,  p.  249,  254,  256,  259. 

a  See  I  Araor.  Museum,  375,  290,  364,  430,  447,  448,  449.  The  Federalist.  No.  15 
to  22  ;  2  Amer.  Museum,  383  ;  Id.  395,  &c. ;  3  Amer.  Museum,  62  to  69 ;  Id.  79;  Id, 
334  to  338  ;  Id.  342 ;  Id.  348,  &c. ;  Id.  549,  &c. ;  I  Kent's  Comm.  201. 

■  1  Amer.  Museum,  352. 

*  S  Marshall's  Life  of  Washington,  83,  •  I  Jefferion'a  Corresp.  63. 


172  HISTORY  OF  THE  CONFEDERATION.  [BOOK  II. 

exempt  from  the  passions  incident  to  human  nature.''  ^  That  is, 
by  supposing  a  case  in  which  all  human  governments  would  be- 
come unnecessary,  and  all  differences  of  opinion  would  become 
impossible.  In  truth,  Congress  possessed  only  the  power  of  rec- 
ommendation.2  It  depended  altogether  upon  the  good-will  of  the 
States,  whether  a  measure  should  be  carried  into  effect  or  not. 
And  it  can  furnish  no  matter  of  surprise,  under  such  circumstances, 
that  great  differences  of  opinion  as  to  measures  should  have  ex- 
isted in  the  legislatures  of  the  different  States  ;  and  that  a  policy, 
strongly  supported  in  some,  should  have  been  denounced  as  ruin- 
ous in  others.  Honest  and  enlightened  men  might  well  divide  on 
such  matters  ;  and  in  this  perpetual  conflict  of  opinion  the  State 
might  feel  itself  justified  in  a  silent  or  open  disregard  of  the  act 
of  Congress. 

§  249.  The  fact  corresponded  with  the  theory.  Even  during 
the  Revolution,  while  all  hearts  and  hands  were  engaged  in  the 
common  cause,  many  of  the  measures  of  Congress  were  defeated 
by  the  inactivity  of  the  States  ;  and  in  some  instances  the  exercise 
of  its  powers  was  resisted.  But  after  the  peace  of  1783,  such 
opposition  became  common,  and  gradually  extended  its  sphere  of 
activity,  until,  in  the  expressive  language  already  quoted,  "the 
confederation  became  a  shadow  without  the  substance."  There 
were  no  national  courts  having  original  or  appellate  jurisdiction 
over  cases  regarding  the  powers  of  the  Union ;  and  if  there  had 
been,  the  relief  would  have  been  but  of  a  very  partial  nature,  since, 
without  some  act  of  State  legislation,  many  of  those  powers  could 
not  be  brought  into  life. 

§  250.  A  striking  illustration  of  these  remarks  maybe  found  in 
our  juridical  history.  The  power  of  appeal  in  prize  causes,  as  an 
incident  to  the  sovereign  powers  of  peace  and  war,  was  asserted 
by  Congress  after  the  most  elaborate  consideration,  and  supported 
by  the  voice  of  ten  States,  antecedent  to  the  ratification  of  the  Arti- 
cles of  Confederation. 3  The  exercise  of  that  power  was,  however, 
resisted  by  the  State  courts,  notwithstanding  its  immense  impor- 
tance to  the  preservation  of  the  rights  of  independent  neutral 

1  5  Marshall's  Life  of  Washington,  31.  See  also  1  Kent's  Comm.  199;  1  Elliot's 
Debates,  208,  209,  210,  211;  North  Amer.  Rev.  Oct.  1827,  p.  249,  257,  &c. ;  The 
Federalist,  No.  15. 

2  The  Federalist,  No.  15. 

8  Journals  of  Congress,  6th  of  March,  1779,  5th  vol.  p.  86,  &c.  to  90. 


CH.  IV.]     DECLINE  AND  FALL  OF  THE  CONFEDERATION.        173 

nations.  The  confederation  gave  in  express  terms  this  right  of 
appeal.  The  decrees  of  the  court  of  appeals  were  equally  resisted ; 
and,  in  fact,  they  remained  a  dead  letter,  until  they  were  enforced 
by  the  courts  of  the  United  States  under  the  present  Constitution. ^ 

§  251.  The  Federalist  speaks  with  unusual  energy  on  this  sub- 
ject :  2  "  The  great  and  radical  vice  in  the  construction  of  the 
confederation  is  in  the  principle  of  legislation  for  States  or  govern- 
ments in  their  corporate  or  collective  capacities,  and  as  contradis- 
tinguished from  the  individuals  of  whom  they  consist.  Though 
this  principle  does  not  run  through  all  the  powers  delegated  to  the 
Union,  yet  it  pervades  and  governs  those  on  which  the  efficacy  of 
the  rest  depends.  Except  as  to  the  rule  of  apportionment,  the 
United  States  have  an  indefinite  discretion  to  make  requisitions 
for  men  and  money  ;  but  they  have  no  authority  to  raise  either  by 
regulations  extending  to  the  individuals  of  America.  The  conse- 
quence of  this  is,  that  though  in  theory  their  resolutions  concern- 
ing those  objects  are  laws,  constitutionally  binding  on  the  members 
of  the  Union,  yet  in  practice  they  are  mere  recommendations,  which 
the  States  observe  or  disregard  at  their  option."  Again :  "  The  con- 
currence of  thirteen  distinct  sovereignties  is  requisite  under  the  con- 
federation to  the  complete  execution  of  every  important  measure  that 
proceeds  from  the  Union.  It  has  happened  as  was  to  have  been 
foreseen.  The  measures  of  the  Union  have  not  been  executed. 
The  delinquencies  of  the  States  have,  step  by  step,  matured  them- 
selves to  an  extreme  which  has  at  length  arrested  all  the  wheels 
of  the  national  government  and  brought  them  to  an  awful  stand. 
Congress  at  this  time  scarcely  possess  the  means  of  keeping  up 
the  forms  of  administration  till  the  States  can  have  time  to  agree 
upon  a  more  substantial  substitute  for  the  present  shadow  of  a 
Federal  government." 

§  252.  A  further  illustration  of  this  topic  may  be  gathered  from 
the  palpable  defect  in  the  confederation  of  any  power  to  give  a 
sanction  to  its  laws.^  Congress  had  no  power  to  exact  obedience, 
or  punish  disobedience  to  its  ordinances.  They  could  neither  im- 
pose fines,  nor  direct  imprisonment,  nor  divest  privileges,  nor 
declare  forfeitures,  nor  suspend  refractory  officers.     There  was  in 

1  Penhallow  v.  Doane,  3  DalL  54 ;  Carson  v.  Jennings,  4  Cranch,  2.  [See  note  to 
§  217,  ante.] 

2  The  Federalist,  No.  15.  See  also  1  Jefferson's  Corresp.  63 ;  President  Monroe's 
Message  of  May,  1822  ;  1  Tucker's  Black.  Comm.  App.  note  D.  passim. 

8  1  Kent's  Comm.  200. 


174  HISTORY  OF  THE   CONFEDERATION.  [BOOK  II. 

the  confederation  no  express  authority  to  exercise  force ;  and 
though  it  might  ordinarily  be  implied,  as  an  incident,  the  right  to 
make  such  implication  was  prohibited,  for  each  State  was  to  "  re- 
tain every  power,  right,  and  jurisdiction  not  expressly  delegated  to 
Congress."  ^  The  consequence  naturally  was,  that  the  resolutions 
of  Congress  were  disregarded,  not  only  by  States,  but  by  individ- 
uals. Men  followed  their  interests  more  than  their  duties ;  they 
cared  little  for  persuasions  which  came  without  force,  or  for  rec- 
ommendations which  appealed  only  to  their  consciences  or  their 
patriotism.^  Indeed,  it  seems  utterly  preposterous  to  call  that  a 
government  which  has  no  power  to  pass  laws ;  or  those  enact- 
ments laws,  which  are  attended  with  no  sanction,  and  have  no 
penalty  or  punishment  annexed  to  the  disobedience  of  them.^ 

§  253.  But  a  still  more  striking  defect  was  the  total  want  of 
power  to  lay  and  levy  taxes,  or  to  raise  revenue  to  defray  the  ordi- 
nary expenses  of  government.^  The  whole  power  confided  to 
Congress  upon  this  head  was  the  power  "  to  ascertain  the  sums 
necessary  to  be  raised  for  the  service  of  the  United  States,"  and 
to  apportion  the  quota  or  proportion  on  each  State.  But  the  power 
was  expressly  reserved  to  the  States  to  lay  and  levy  the  taxes, 
and  of  course  the  time,  as  well  as  the  mode  of  payment,  was  ex- 
tremely uncertain.  The  evils  resulting  from  this  source,  even 
during  the  Revolutionary  War,  were  of  incalculable  extent ;  ^  and, 
but  for  the  good  fortune  of  Congress  in  obtaining  foreign  loans,  it 
is  far  from  being  certain  that  they  would  not  have  been  fatal.^ 
The  principle  which  formed  the  basis  of  the  apportionment  was 
sufficiently  objectionable,  as  it  took  a  standard  extremely  unequal 
in  its  operation  upon  the  different  States.  The  value  of  its  lands 
was  by  no  means  a  just  representative  of  the  proportionate  contri- 
butions which  each  State  ought  to  make  towards  the  discharge  of 
the  common  burdens.'' 

§  254.   But  this  consideration  sinks  into  utter  insignificance  in 

1  The  Federalist,  No.  21. 

2  Yates's  Minutes,  4  Elliot's  Deb.  84. 

8  The  Federalist,  No.  15 ;  1  Kent,  Comm.  200,  201. 

*  See  in  1  U.  S.  Laws,  (Bioren  &  Duane's  ed.,)  p.  37  to  54,  the  proceedings  of 
the  old  Congress  on  this  subject.  See  also  The  Federalist,  No.  21 ;  I  Tucker's  Black. 
Comm.  235  to  238 ;  The  Federalist,  Nos.  22,  32. 

5  5  Marshall's  Life  of  Washington,  55  ;  1  Amer.  Museum,  449. 

6  2  Pitk.  Hist.  158,  159,  160,  163 ;  1  Tucker's  Black.  Comm.  App.  237,  243  to  246; 
1  U.  S.  Laws,  37,  54. 

7  The  Federalist,  Nos.  21,  30, 


CH.  IV.]     DECLINE  AND  FALL  OP  THE  CONFEDERATION.        175 

comparison  with  others.  Requisitions  were  to  be  made  upon 
thirteen  independent  States,  and  it  depended  upon  the  good-will 
of  the  legislature  of  each  State,  whether  it  would  comply  at  all ; 
or  if  it  did  comply,  at  what  time,  and  in  what  manner.  The  very 
tardiness  of  such  an  operation,  in  the  ordinary  course  of  things, 
was  sufficient  to  involve  the  government  in  perpetual  financial 
embarrassments,  and  to  defeat  many  of  its  best  measures,  even 
when  there  was  the  utmost  good  faith  and  promptitude  on  the 
part  of  the  States,  in  complying  with  the  requisitions.  But  many 
reasons  concurred  to  produce  a  total  want  of  promptitude  on  the 
part  of  the  States,  and,  in  numerous  instances,  a  total  disregard 
of  the  requisitions. 1  Indeed,  from  the  moment  that  the  peace  of 
1783  secured  the  country  from  the  distressing  calamities  of  war, 
a  general  relaxation  took  place ;  and  many  of  the  States  succes- 
sively found  apologies  for  their  gross  neglect  in  evils  common  to 
all,  or  complaints  listened  to  by  all.  Many  solemn  and  affecting 
appeals  were  from  time  to  time  made  by  Congress  to  the  States, 
but  they  were  attended  with  no  salutary  effect.^  Many  measures 
were  devised  to  obviate  the  difficulties,  nay,  the  dangers,  which 
threatened  the  Union ;  but  they  failed  to  produce  any  amendments 
in  the  confederation. ^  An  attempt  was  made  by  Congress,  during 
the  war,  to  procure  from  the  States  an  authority  to  levy  an  impost 
of  five  per  cent  upon  imported  and  prize  goods,  but  the  assent  of 
all  the  States  could  not  be  procured.*  The  treasury  was  empty, 
the  credit  of  the  confederacy  was  sunk  to  a  low  ebb,  the  public 
burdens  were  increasing,  and  the  public  faith  was  prostrate. 

§  255.  These  general  remarks  may  be  easily  verified  by  an  ap- 
peal to  the  public  acts  and  history  of  the  times.  The  close  of  the 
Be  volution,  independent  of  the  enormous  losses  occasioned  by 
the  excessive  issue  and  circulation,  and  consequent  depreciation 
of  paper  money,  found  the  country  burthened  with  a  public  debt 
of  upwards  of  forty-two  millions  of  dollars ;  ^  eight  millions  of 

1  2  Pitk.  Hist.  156,  157.  See  also  Kemarks  of  Patterson,  J.  in  Hylton  v.  United 
States,  3  Dall.  1 71  ;  1  Elliot's  Debates,  208  ;  The  Federalist,  Nos.  21,  31. 

2  See  1  U.  S.  Laws,  (Bioren  &  Duane's  ed.  1815,)  from  page  37  to  54. 
8  5  Marshall's  Life  of  Washington,  p.  35,  36,  37. 

*  5  Marshall's  Life  of  Washington,  37  ;  Jour,  of  Congress,  3d  Feb.  1781,  p.  26 ;  Id. 
16th  Dec.  1782,  p.  38  ;  Id.  26th  April,  1783,  p  194,  203. 

^  [Rives,  Life  of  Madison,  III.  73.]  The  whole  expense  of  the  war  was  estimated  at 
135  millions  of  dollars,  including  the  specie  value  of  all  treasury  bills  of  the  United 
States,  reduced  according  to  the  scale  of  depreciation  established  by  Congress.  2  Pitk. 
Hist.  180. 


176  HISTORY   OF  THt:   CONFEDERATION.  [BOOK  II. 

which  were  due  for  loans  obtained  in  France  or  Holland,  and  the 
remainder  to  our  own  citizens,  and  principally  to  those  whose 
bravery  and  patriotism  had  saved  their  country.^  Congress,  con- 
scious of  its  inability  to  discharge  even  the  interest  of  this  debt 
by  its  existing  means,  on  the  12th  of  February,  1783,  resolved 
that  the  establishment  of  permanent  and  adequate  funds  or  taxes 
or  duties  throughout  the  United  States  was  indispensable  to  do 
justice  to  the  public  creditors.  On  the  18th  of  April  following, 
after  much  debate,  a  resolution  was  passed  recommending  to  the 
States  to  vest  Congress  with  power  to  levy  certain  specified  duties 
on  spirits,  wines,  teas,  pepper,  sugar,  molasses,  cocoa,  and  coffee, 
and  a  duty  of  five  per  cent  ad  valorem  on  all  other  imported  goods. 
These  duties  were  to  continue  for  twenty-five  years,  and  were  to 
be  applied  solely  to  the  payment  of  the  principal  and  interest  of 
the  public  debt,  and  were  to  be  collected  by  officers  chosen  by  the 
States,  but  removable  by  Congress.  The  States  were  further  re- 
quired to  establish,  for  the  same  time  and  object,  other  revenues, 
exclusive  of  the  duties  on  imports,  according  to  the  proportion 
settled  by  the  confederation  ;  and  the  system  was  to  take  effect 
only  when  the  consent  of  all  the  States  was  obtained. ^ 

§  256.  The  measure  thus  adopted  was  strongly  urged  upon  the 
States  in  an  address,  drawn  up  under  the  authority  of  Congress 
by  some  of  our  most  distinguished  statesmen.  Whoever  reads  it, 
even  at  this  distance  of  time,  will  be  struck  with  the  force  of  its 
style,  the  loftiness  of  its  sentiments,  and  the  unanswerable  reason- 
ing, by  which  it  sustained  this  appeal  to  the  justice  and  patriot- 
ism of  the  nation.3  It  was  also  recommended  by  Washington  in 
a  circular  letter  addressed  to  the  governors  of  the  several  States, 
availing  himself  of  the  approaching  resignation  of  his  public  com- 
mand to  impart  his  farewell  advice  to  his  country.  After  having 
stated  that  there  were,  in  his  opinion,  four  things  essential  to  the 
well-being  and  existence  of  the  United  States,  as  an  independent 

1  2  Pitk.  Hist.  180 ;  5  Marsh.  Life  of  Wash.  33. 

2  2  Pitk.  Hist.  180,  181 ;  5  Marsh.  Life  of  Wash.  35,  36;  Journals  of  Congress,  12th 
Eeb.  1783,  p.  126;  Id.  20th  March,  1783,  p.  154,  157,  158,  160;  Id.  18th  April,  1783, 
p.  185  to  189.  An  attempt  was  subsequently  made  in  Congress  to  procure  authority 
to  levy  the  taxes  for  the  Union  separately  from  other  State  taxes  ;  and  to  make  the  col- 
lectors liable  to  an  execution  by  the  treasurer  or  his  deputy,  under  the  direction  of  Con- 
gress. But  the  measure  failed  of  receiving  the  vote  of  Congress  itself.  5  Marsh.  Life 
of  Washington,  36,  note. 

8  2  Pitk.  Hist.  181,  182 ;  5  Marsh.  Life  of  Wash.  32,  38,  39. 


CH.  IV.]     DECLINE  AND  FALL  OF  THE  CONFEDERATION.        177 

power,  —  namely,  1.  An  indissoluble  union  of  the  States  under  one 
Federal  liead  ;  2.  A  sacred  regard  to  public  justice  ;  3.  The  adop- 
tion of  a  proper  peace  establishment ;  4.  The  prevalence  of  a 
pacific  and  friendly  disposition  of  the  people  of  the  United  States 
towards  each  other,  —  he  proceeded  to  discuss  at  large  the  first 
three  topics.  The  following  passage  will  at  once  disclose  the 
depth  of  his  feelings  and  the  extent  of  his  fears :  "  Unless  (said 
he)  the  States  will  suffer  Congress  to  exercise  those  prerogatives 
they  are  undoubtedly  invested  with  by  the  Constitution,  every- 
thing must  very  rapidly  tend  to  anarchy  and  confusion.  It  is 
indispensable  to  the  happiness  of  the  individual  States  that  there 
should  be  lodged  somewhere  a  supreme  power  to  regulate  and 
govern  the  general  concerns  of  the  confederated  republic,  without 
which  the  Union  cannot  be  of  long  duration.  There  must  be  a 
faithful  and  pointed  compliance  on  the  part  of  every  State  with 
the  late  proposals  and  demands  of  Congress,  or  the  most  fatal 
consequences  will  ensue.  Whatever  measures  have  a  tendency  to 
dissolve  the  Union,  or  contribute  to  violate  or  lessen  the  sovereign 
authority,  ought  to  be  considered  hostile  to  the  liberty  and  inde- 
pendence of  America,  and  the  authors  of  them  treated  accordingly. 
And,  lastly,  unless  we  can  be  enabled  by  the  concurrence  of  the 
States  to  participate  of  the  fruits  of  the  Revolution,  and  enjoy  the 
essential  benefits  of  civil  society  under  a  form  of  government  so 
free  and  uncorrupted,  so  happily  guarded  against  the  danger  of 
oppression,  as  has  been  devised  by  the  Articles  of  Confederation, 
it  will  be  a  subject  of  regret  that  so  much  blood  and  treasure  have 
been  lavished  for  no  purpose ;  that  so  many  sufferings  have  been 
encountered  without  compensation  ;  and  that  so  many  sacrifices 
have  been  made  in  vain."  ^ 

§  257.  Notwithstanding  the  warmth  of  this  appeal  and  the 
urgency  of  the  occasion,  the  measure  was  never  ratified.  A  jeal- 
ousy began  to  exist  between  the  State  and  general  governments  ; 
and  the  State  interests,  as  might  naturally  be  presumed,  predomi- 
nated. Some  of  the  States  adopted  the  resolution  as  to  the  imposts 
with  promptitude  ;  others  gave  a  slow  and  lingering  assent ;  and 
others  held  it  under  advisement.^    In  the  mean  time.  Congress  was 

1  5  Marsh.  Life  of  Wash.  46,  47,  48  ;  2  Pitk.  Hist.  216,  217.  See  also  2  American 
Museum,  153  to  158,  Mr.  Pinckney's  Speech.  See  also  1  Kent,  Comm.  Lect.  10,  p. 
212  to  247  (2d  edition). 

2  Journals  of  Congress,  1786,  p.  34.     See  also  2  American  Museum;  153.     The 
VOL.  I.  12 


178  HISTORY   OF  THE  CONFEDERATION.  [BOOK  II. 

obliged  to  rely,  for  the  immediate  supply  of  the  treasury,  upon 
requisitions  annually  made  and  annually  neglected.  The  requisi- 
tions for  the  payment  of  the  interest  upon  the  domestic  debt,  from 
1782  to  1786,  amounted  to  more  than  six  millions  of  dollars ;  and 
of  this  sum  up  to  March,  1787,  about  a  million  only  was  paid ;  ^ 
and  from  November,  1784,  to  January,  1786,  four  hundred  and 
eighty-three  thousand  dollars  only  had  been  received  at  the  na- 
tional treasury .2  But  for  a  temporary  loan  negotiated  in  Holland 
there  would  have  been  an  utter  prostration  of  the  government.  In 
this  state  of  things  the  value  of  the  domestic  debt  sunk  down  to 
about  one  tenth  of  its  nominal  amount.^ 

§  258.  In  February,  1786,  Congress  determined  to  make  another 
and  last  appeal  to  the  States  upon  the  subject.  The  report  adopted 
upon  that  occasion  contains  a  melancholy  picture  of  the  state  of 
the  nation.  "  In  the  course  of  this  inquiry  (said  the  report)  it 
most  clearly  appeared  that  the  requisitions  of  Congress  for  eight 
years  past  have  been  so  irregular  in  their  operation,  so  uncertain 
in  their  collection,  and  so  evidently  unproductive,  that  a  reliance 
on  them  in  future,  as  a  source  from  whence  moneys  are  to  be 
drawn  to  discharge  the  engagements  of  the  confederation,  definite 
as  tliey  are  in  time  and  amount,  would  he  no  less  dishonorable  to  the 
understandings  of  those  who  entertained  such  confidence,  than  it 
would  be  dangerous  to  the  welfare  and  peace  of  the  Union."  "  It 
has  become  the  duty  of  Congress  to  declare  most  explicitly,  that 
the  crisis  has  arrived,  when  the  people  of  these  United  States,  by 
whose  will  and  for  whose  benefit  the  Federal  government  was  insti- 
tuted, must  decide  whether  they  will  support  their  rank,  as  a 
nation,  by  maintaining  the  public  faith  at  home  or  abroad ;  or 
whether,  for  want  of  a  timely  exertion  in  establishing  a  general 
revenue  and  thereby  giving  strength  to  the  confederacy,  they  will 
hazard  not  only  the  existence  of  the  Union,  but  of  those  great  and 
invaluable  privileges  for  which  they  have  so  arduously  and  so 
honorably  contended."  *    After  the  adoption  of  this  report,  three 

Report  of  a  committee  of  Congress  of  the  15th  of  February,  1786,  contains  a  de- 
tailed statement  of  the  acts  of  the  States  relative  to  the  measure.  Jour,  of  Congress, 
1786,  p.  34;  I  Amer.  Museum,  282;  2  Amer.  Museum,  1.53  to  160. 

1  2  Pitk.  Hist.  184.  •  '^5  Marsh.  Life  of  Wash.  60. 

8  2  Pitk.  Hist.  185. 

*  Journals  of  Congress,  1786,  p.  34  to  36 ;  1  Amer.  Museum,  282,  &c.  The  Com- 
mittee who  made  the  Report  were  Mr.  King,  Mr.  Pinckney,  Mr.  Kean,  Mr.  Monroe, 
and  Mr.  Pettit. 


CH.  IV.]     DECLINE  AND  FALL  OF  THE  CONFEDERATION.        179 

States  which  had  hitherto  stood  aloof  came  into  the  measure. 
New  York  alone  refused  to  comply  with  it ;  and  after  a  most  ani- 
mated debate  in  her  legislature,  she  remained  inflexible,  and  the 
fate  of  the  measure  was  sealed  forever  by  her  solitary  negative.^ 

§  259.  Independent,  however,  of  this  inability  to  lay  taxes  or 
collect  revenue,  the  want  of  any  power  in  Congress  to  regulate 
foreign  or  domestic  commerce  was  deemed  a  leading  defect  in  the 
confederation.  This  evil  was  felt  in  a  comparatively  slight  degree 
during  the  war.  But  when  the  return  of  peace  restored  the  coun- 
try to  its  ordinary  commercial  relations,  the  want  of  some  uniform 
system  to  regulate  them  was  early  perceived ;  and  the  calamities 
which  followed  our  shipping  and  navigation,  our  domestic  as  well 
as  our  foreign  trade,  convinced  the  reflecting  that  ruin  impended 
upon  these  and  other  vital  interests,  unless  a  national  remedy 
could  be  devised.  We  accordingly  find  the  public  papers  of  that 
period  crowded  with  complaints  on  this  subject.  It  was,  indeed, 
idle  and  visionary  to  suppose,  that  while  thirteen  independent 
States  possessed  the  exclusive  power  of  regulating  commerce, 
there  could  be  found  any  uniformity  of  system,  or  any  harmony 
and  co-operation  for  the  general  welfare.  Measures  of  a  commer- 
cial nature,  which  were  adopted  in  one  State  from  a  sense  of  its 
own  interests,  would  be  often  countervailed  or  rejected  by  other 
States  from  similar  motives.  If  one  State  should  deem  a  naviga- 
tion act  favorable  to  its  own  growth,  the  efficacy  of  such  a  measure 
might  be  defeated  by  the  jealousy  or  policy  of  a  neighboring  State. 
If  one  should  levy  duties  to  maintain  its  own  government  and  re- 
sources, there  were  many  temptations  for  its  neighbors  to  adopt  the 
system  of  free  trade,  to  draw  to  itself  a  larger  share  of  foreign  and 
domestic  commerce.  The  agricultural  States  might  easily  suppose 
that  they  had  not  an  equal  interest  in  the  restrictive  system  with 
the  navigating  States.  And,  at  all  events,  each  State  would  legis- 
late according  to  its  estimate  of  its  own  interests,  the  importance 

1  2  Pitk.  Hist.  184,  222 ;  5  Marsh.  Life  of  Washington,  62,  63,  124 ;  1  Tuck.  Black. 
App.  1.58.  The  speech  of  Colonel  Hamilton,  then  in  the  legislature  of  New  York,  in  Feb- 
ruary, 1787,  contains  a  very  powerful  argument  in  favor  of  the  impost;  and  a  statement 
of  the  extent  to  which  each  of  the  States  had  complied  with  or  refused  the  requisitions 
of  Congress.  During  the  past  five  years,  he  says.  New  Hampshire,  North  Carolina, 
South  Carolina,  and  Georgia  had  paid  nothing ;  Connecticut  and  Delaware,  about  one 
third;  Massachusetts,  Rhode  Island,  and  Maryland,  about  one  half;  Virginia,  three 
fifths  ;  Pennsylvania,  near  the  whole ;  and  New  York,  more  than  her  quota.  1  Amer. 
Museum,  445,  448. 


180  HISTORY   OF  THE   CONFEDERATION.  [BOOK  U. 

of  its  own  products,  and  the  local  advantages  or  disadvantages  of 
its  position  in  a  political  or  commercial  view.  To  do  otherwise 
would  be  to  sacrifice  its  immediate  interests,  without  any  adequate 
or  enduring  consideration ;  to  legislate  for  others,  and  not  for 
itself ;  to  dispense  blessings  abroad,  without  regarding  the  security 
of  those  at  home.^ 

§  260.  Such  a  state  of  things  necessarily  gave  rise  to  serious 
dissensions  among  the  States  themselves.  The  difference  of  regu- 
lations was  a  perpetual  source  of  irritation  and  jealousy.  Real  or 
imaginary  grievances  were  multiplied  in  every  direction  ;  and  thus 
State  animosities  and  local  prejudices  were  fostered  to  a  high 
degree,  so  as  to  threaten  at  once  the  peace  and  safety  of  the 
Union.2    Like  evils  existed  in  our  colonial  state.^ 

§  261.  These  evils  were  aggravated  by  the  situation  of  our 
foreign  commerce.  During  the  war,  our  commerce  was  nearly 
annihilated  by  the  superior  naval  power  of  the  enemy ;  and  the 
return  of  peace  enabled  foreign  nations,  and  especially  Great 
Britain,  in  a  great  measure  to  monopolize  all  the  benefits  of  our 
home  trade.  In  the  first  place,  our  navigation,  having  no  protec- 
tion, was  unable  to  engage  in  competition  with  foreign  ships.  In 
the  next  place,  our  supplies  were  almost  altogether  furnished  by 
foreign  importers  or  on  foreign  account.  We  were  almost  flooded 
with  foreign  manufactures,  while  our  own  produce  bore  but  a  re- 
duced price.*  It  was  easy  to  foresee  that  such  a  state  of  things 
must  soon  absorb  all  our  means,  and  as  our  industry  had  but  a 
narrow  scope,  would  soon  reduce  us  to  absolute  poverty.  Our 
trade  in  our  own  ships  with  foreign  nations  was  depressed  in  an 
equal  degree  ;  for  it  was  loaded  with  heavy  restrictions  in  their 
ports.     While,  for  instance,  British  ships,  with  their  commodities, 

1  New  Jersey  early  felt  the  want  of  a  power,  in  Congress,  to  regulate  foreign  com- 
merce, and  made  it  one  of  her  objections  to  adopting  the  Articles  of  Confederation,  in  her 
representation  to  Congress.  2  Pitk.  Hist.  23,  24  ;  1  Secret  Joum.  375  ;  The  Federalist, 
No.  38. 

2  2  Pitk.  Hist.  192,  214,  215;  1  Amer.  Museum,  272,  273,  281,  282,  288;  The  Fed- 
eralist, No.  22 ;  1  Amer.  Mus.  13  to  16 ;  2  Amer.  Mus,  395  to  399 ;  The  Federalist, 
No.  7 ;  1  Elliot's  Debates,  75  ;  1  Tucker's  Black.  Coram.  App.  159,  248,  249.  Mons. 
Turgot,  the  comptroller-general  of  the  finances  of  France,  among  other  errors  in  our 
national  policy,  observed,  that  in  the  several  States  "  one  fixed  principle  is  established 
in  regard  to  imposts.  Each  State  is  supposed  to  be  at  liberty  to  tax  itself  at  pleasure, 
and  to  lay  its  taxes  upon  persons,  consumptions,  or  importations ;  that  is  to  say,  to 
erect  an  interest  contrary  to  that  of  other  States."     1  Amer.  Museum,  16. 

3  2  Graham's  Hist.  Appx.  498,  499. 

*  5  Marsh.  Life  of  Washington,  69,  72,  75,  79,  80. 


CH.  IV.]     DECLINE  AND  FALL  OF  THE  CONFEDERATION.        181 

had  free  admission  into  our  ports,  American  ships  and  exports 
were  loaded  with  heavy  exactions,  or  prohibited  from  entry  into 
British  ports. ^  We  were  therefore  the  victims  of  our  own  imbe- 
cility, and  reduced  to  a  complete  subjection  to  the  conmiercial 
regulations  of  other  countries,  notwithstanding  our  boasts  of  free- 
dom and  independence.  Congress  had  been  long  sensible  of  the 
fatal  effects  flowing  from  this  source  ;  but  their  efforts  to  ward  off 
the  mischiefs  had  been  unsuccessful.  Being  invested  by  the  Arti- 
cles of  Confederation  with  a  limited  power  to  form  commercial 
treaties,  they  endeavored  to  treat  with  foreign  powers  upon  princi- 
ples of  reciprocity.  But  these  negotiations  were,  as  might  be 
anticipated,  unsuccessful,  for  the  parties  met  upon  very  unequal 
terms.  Foreign  nations,  and  especially  Great  Britain,  felt  secure 
in  the  possession  of  their  present  command  of  our  trade,  and  had 
not  the  least  inducement  to  part  with  a  single  advantage.  It  was 
further  pressed  upon  us,  with  a  truth  equally  humiliating  and  un- 
deniable, that  Congress  possessed  no  effectual  power  to  guarantee 
the  faithful  observance  of  any  commercial  regulations  ;  and  there 
must  in  such  cases  be  reciprocal  obligations.^  "  America  (said 
Washington)  must  appear  in  a  very  contemptible  point  of  view  to 
those  with  whom  she  was  endeavoring  to  form  commercial  treaties 
without  possessing  the  means  of  carrying  them  into  effect.  They 
must  see  and  feel  that  the  Union,  or  the  States  individually,  are 
sovereign,  as  best  suits  their  purposes.  In  a  word,  that  we  are  a 
nation  to-day,  and  thirteen  to-morrow.  Who  will  treat  with  us  on 
such  terms  ? "  ^ 

§  262.  The  difficulty  of  enforcing  even  the  obligations  of  the 
treaty  of  peace  of  1783  was  a  most  serious  national  evil.  Great 
Britain  made  loud  complaints  of  infractions  thereof  on  the  part  of 
the  several  States,  and  demanded  redress.  She  refused  on  account 
of  these  alleged  infractions  to  surrender  up  the  western  ports  ac- 
cording to  the  stipulations  of  that  treaty  ;  and  the  whole  confed- 
eracy was  consequently  threatened  with  the  calamities  of  Indian 

1  1  Tuck.  Black.  App.  157,  159 ;  5  Marsh.  Life  of  Wash.  77,  78;  2  Pitk.  Hist.  186 
to  192  ;  1  Amer.  Museum,  282,  288  ;  2  Amer.  Museum,  263  to  276  ;  Id.  371  to  373  ;  3 
Amer.  Museum,  554  to  557,  562;  North  American  Review,  Oct.  1827,  p.  249,  257, 
258. 

2  5  Marsh.  Life  of  Wash.  71,  72,  73;  2  Pitk.  Hist.  189,  190;  3  Amer.  Museum,  62, 
64,  65. 

»  5  Marsh.  Life  of  Wash.  73  ;  North  American  Review,  Oct.  1827,  p.  257,  258  ; 
Atcheson's  Coll.  of  Reports,  p.  55. 


182  HISTORY  OF   THE  CONFEDERATION.  [BOOK  U. 

depredations  on  the  whole  of  our  western  borders,  and  was  in  dan- 
ger of  having  its  public  peace  subverted  through  its  mere  inability 
to  enforce  the  treaty  stipulations.  The  celebrated  address  of  Con- 
gress, in  1787,  to  the  several  States  on  this  subject,  is  replete  with 
admirable  reasoning,  and  contains  melancholy  proofs  of  the  utter 
inefficiency  of  the  confederation,  and  of  the  disregard  by  the  States 
in  their  legislation  of  the  provisions  of  that  treaty.^ 

§  263.  In  April,  1784,  Congress  passed  a  resolution  requesting 
the  States  to  vest  the  general  government  with  power,  for  fifteen 
years  only,  to  prohibit  the  importation  and  exportation  of  goods  in 
the  ships  of  nations  with  which  we  had  no  commercial  treaties ; 
and  also  to  prohibit  the  subjects  of  foreign  nations,  unless  author- 
ized by  treaty,  to  import  any  goods  into  the  United  States,  not  the 
produce  or  manufacture  of  the  dominions  of  their  own  sovereign. 
Although  Congress  expressly  stated,  that  without  such  a  power  no 
reciprocal  advantages  could  be  acquired,  the  proposition  was  never 
assented  to  by  the  States  ;  and  their  own  countervailing  laws  were 
either  rendered  nugatory  by  the  laws  of  other  States,  or  were  re- 
pealed by  a  regard  to  their  own  interests.^  At  a  still  later  period 
a  resolution  was  moved  in  Congress,  recommending  it  to  the  States 
to  vest  in  the  general  government  full  authority  to  regulate  exter- 
nal and  internal  commerce,  and  to  impose  such  duties  as  might  be 
necessary  for  the  purpose,  which  shared  even  a  more  mortifying 
fate  ;  for  it  was  rejected  in  that  body,  although  all  the  duties  were 
to  be  collected  by  and  paid  over  to  the  States.^ 

§  264.  Various  reasons  concurred  to  produce  these  extraordi- 
nary results.  But  the  leading  cause  was  a  growing  jealousy  of  the 
general  government,  and  a  more  devoted  attachment  to  the  local 
interests  of  the  States ;  a  jealousy  which  soon  found  its  way  even 
into  the  councils  of  Congress,  and  enervated  the  little  power  which 
it  was  yet  suifered  to  exert.  One  memorable  instance  occurred, 
when  it  was  expected  that  the  British  garrisons  would  surrender 
the  western  posts,  and  it  was  thought  necessary  to  provide  some 

1  Journals  of  Congress,  April  13,  1787,  p.  32;  Eawle  on  Constitution,  App.  2,  p. 
316.  It  was  drawn  up  by  Mr.  Jay,  then  Secretary  of  Foreign  Affairs,  and  was  unani- 
mously adopted  by  Congress.  It  however  failed  of  its  object.  And  the  treaty  of  1 783, 
so  far  as  it  respected  British  debts,  was  never  faithfully  executed  until  after  the  adop- 
tion of  the  Constitution  of  the  United  States.  See  Ware  v.  Rylton,  3  Dall,  R.  199 ; 
Hopkins  v.  Bell,  3  Cranch,  454  ;  [Rives,  Life  of  MadisonJ  II.  10  et  seq.] 

2  2  Pitk.  Hist.  192;  5  Marsh.  Life  of  Wash.  70. 
»  5  Marsh.  Life  of  Washington,  80,  81. 


CH.  IV.]     DECLINE  AND  FALL  OF  THE  CONFEDERATION.        183 

regular  troops  to  take  possession  of  them  on  the  part  of  America. 
The  power  of  Congress  to  make  a  requisition  on  the  States  for  this 
purpose  was  gravely  contested ;  and,  as  connected  with  the  right 
to  borrow  money  and  emit  bills  of  credit,  was  asserted  to  be  dan- 
gerous to  liberty  and  alarming  to  the  States.  The  measure  was 
rejected,  and  militia  were  ordered  in  their  stead. ^ 

§  265.  There  were  other  defects  seriously  urged  against  the  con- 
federation, which,  although  not  of  such  a  fatal  tendency  as  those 
already  enumerated,  were  deemed  of  sufficient  importance  to  justify 
doubts  as  to  its  efficacy  as  a  bond  of  union,  or  an  enduring  scheme 
of  government.  It  is  not  necessary  to  go  at  large  into  a  consider- 
ation of  them.  It  will  suffice  for  the  present  purpose  to  enumerate 
the  principal  heads.  1.  The  principle  of  regulating  the  contri- 
butions of  the  States  into  the  common  treasury  by  quotas,  appor- 
tioned according  to  the  value  of  lands,  which  (as  has  been  already 
suggested)  was  objected  to  as  unjust,  unequal,  and  inconvenient 
in  its  operation  .2  2.  The  want  of  a  mutual  guaranty  of  the 
State  governments,  so  as  to  protect  them  against  domestic  insur- 
rections, and  usurpations  destructive  of  their  liberty.^  3.  The 
want  of  a  direct  power  to  raise  armies,  which  was  objected  to  as 
unfriendly  to  vigor  and  promptitude  of  action,  as  well  as  to  econ- 
omy and  a  just  distribution  of  the  public  burdens.*  4.  The 
right  of  equal  suffi?age  among  all  the  States,  so  that  the  least  in 
point  of  wealth,  population,  and  means  stood  equal  in  the  scale  of 
representation  with  those  which  were  the  largest.  From  this  cir- 
cumstance it  might,  nay,  it  must  happen,  that  a  majority  of  the 
States,  constituting  a  third  only  of  the  people  of  America,  could 
control  the  rights  and  interests  of  the  other  two  thirds.^  Nay,  it 
was  constitutionally,  not  only  possible,  but  true  in  fact,  that  even 
the  votes  of  nine  States  might  not  comprehend  a  majority  of  the 
people  in  the  Union.  The  minority,  therefore,  possessed  a  nega- 
tive upon  the  majority.  5.  The  organization  of  the  whole  pow- 
ers of  the  general  government  in  a  single  assembly,  without  any 
separate  or  distinct  distribution  of  the  executive,  judicial,  and 
legislative  functions.^    It  was  objected,  that  either  the  whole  su- 

1  5  Marsh.  Life  of  Washington,  App.  note  1. 

2  The  Federalist,  No.  21  ;  3  Amer.  Museum,  62,  63,  64. 

8  The  Federalist,  No.  21 ;  3  Amer.  Museum,  62,  65.  *  The  Federalist,  No.  22. 

5  The  Federalist,  No.  22  ;  1  Amer.  Museum,  275  ;  3  Amer.  Museum,  62,  66. 
*  The  Federalist,  No.  22  ;  1  Amer.  Museum,  8,  9  ;  Id.  272 ;  3  Amer.  Museum,  62, 
66  ;  1  Kent's  Comm.  Lect.  10,  p.  200  [2d  edit.  p.  212]. 


184  HISTORY  OF  THE  CONFEDERATION.  [BOOK  II. 

perstructure  would  thus  fall,  from  its  own  intrinsic  feebleness  ;  or, 
engrossing  all  the  attributes  of  sovereignty,  entail  upon  the  country 
a  most  execrable  form  of  government  in  the  shape  of  an  irrespon- 
sible aristocracy.  6.  The  want  of  an  exclusive  power  in  the 
general  government  to  issue  paper  money ;  and  thus  to  prevent 
the  inundation  of  the  country  with  a  base  currency,  calculated  to 
destroy  public  faith  as  well  as  private  morals.^  7.  The  too  fre- 
quent rotation  required  by  the  confederation  in  the  office  of  mem- 
bers of  Congress,  by  which  the  advantages  resulting  from  long 
experience  and  knowledge  in  the  public  affairs  were  lost  to  the 
public  councils.2  8.  The  want  of  judiciary  power  coextensive 
with  the  powers  of  the  general  government. 

§  266.  In  respect  to  this  last  defect,  the  language  of  the  Feder- 
alist ^  contains  so  full  an  exposition  that  no  further  comment  is 
required.  "  Laws  are  a  dead  letter  without  courts  to  expound  and 
define  their  true  meaning  and  operation.  The  treaties  of  the 
United  States,  to  have  any  force  at  all,  must  be  considered  as  part 
of  the  law  of  the  land.  Their  true  import,  as  far  as  respects  indi- 
viduals, must,  like  all  other  laws,  be  ascertained  by  judicial  deter- 
minations. To  produce  uniformity  in  these  determinations,  they 
ought  to  be  submitted,  in  the  last  resort,  to  one  supreme  tribunal. 
And  this  tribunal  ought  to  be  instituted  under  the  same  authority 
which  forms  the  treaties  themselves.  These  ingredients  are  both 
indispensable.  If  there  is  in  each  State  a  court  of  final  jurisdic- 
tion, there  may  be  as  many  different  final  determinations  on  the 
same  point  as  there  are  courts.  There  are  endless  diversities  in 
the  opinions  of  men.  We  often  see  not  only  different  courts,  but 
the  judges  of  the  same  court  differing  from  each  other.  To  avoid 
the  confusion  which  would  unavoidably  result  from  the  contradic- 
tory decisions  of  a  number  of  independent  judicatories,  all  nations 
have  found  it  necessary  to  establish  one  tribunal  paramount  to  the 
?est,  possessing  a  general  superintendence,  and  authorized  to  settle 
and  declq,re,  in  the  last  resort,  an  uniform  rule  of  justice." 

§  267.  "  This  is  the  more  necessary  where  the  frame  of  govern- 
ment is  so  compounded  that  the  laws  of  the  whole  are  in  danger 
of  being  contravened  by  the  laws  of  the  parts,  &c.     The  treaties 

1  1  Amer.  Museum,  8,  9 ;  Id.  363.  [See  Vau  Buren,  Political  Parties,  55  ;  Life  of 
Samuel  Adams,  II.  480.] 

2  1  Amer,  Museum,  8,  9 ;  3  Amer.  Museum,  62,  66. 

3  Tbe  Federalist,  No.  22, 


CH.  IV.]     DECLINE  AND  FALL  OF  THE  CONFEDERATION.        185 

of  the  United  States,  under  the  present  confederation,  are  liable 
to  the  infractions  of  thirteen  different  legislatures,  and  as  many 
different  courts  of  final  jurisdiction,  acting  under  the  authority  of 
these  legislatures.  The  faith,  the  reputation,  the  peace  of  the 
whole  Union,  are  thus  continually  at  the  mercy  of  the  prejudices, 
the  passions,  and  the  interests  of  every  member  of  which  these 
are  composed.  Is  it  possible,  under  such  circumstances,  that  for- 
eign nations  can  either  respect  or  confide  in  such  a  government  ? 
Is  it  possible  that  the  people  of  America  will  longer  consent  to 
trust  their  honor,  their  happiness,  their  safety,  on  so  precarious  a 
foundation  ?  "  It  might  have  been  added  that  the  rights  of  indi- 
viduals, so  far  as  they  depended  upon  acts  or  authorities  derived 
from  the  confederation,  were  liable  to  the  same  difficulties  as  the 
rights  of  other  nations  dependent  upon  treaties.^ 

§  268.  The  last  defect  which  seems  worthy  of  enumeration  is, 
that  the  confederation  never  had  a  ratification  of  the  people. 
Upon  this  objection,  it  will  be  sufficient  to  quote  a  single  passage 
from  the  same  celebrated  work,  as  it  affords  a  very  striking  com- 
mentary upon  some  extraordinary  doctrines  recently  promulgated.^ 
"  Resting  on  no  better  foundation  than  the  consent  of  the  State 
legislatures,  it  [the  confederation]  has  been  exposed  to  frequent  and 
intricate  questions  concerning  the  validity  of  its  powers,  and  has, 
in  some  instances,  given  birth  to  the  enormous  doctrine  of  a  right 
of  legislative  repeal.  Owing  its  ratification  to  a  law  of  a  State,  it 
has  been  contended  that  the  same  authority  might  repeal  the  law 
by  which  it  was  ratified.  However  gross  a  heresy  it  may  be  to 
maintain  that  a  party  to  a  compact  has  a  right  to  revoke  that  com- 
pact, the  doctrine  itself  has  had  respectable  advocates.  The  pos- 
sibility of  a  question  of  this  nature  proves  the  necessity  of  laying 
the  foundations  of  our  national  government  deeper  than  in  the 
mere  sanction  of  delegated  authority.  The  fabric  of  American 
empire  ought  to  rest  on  the  solid  basis  of  the  consent  of  the 
PEOPLE.  The  streams  of  national  power  ought  to  flow  immediately 
from  that  pure,  original  fountain  of  all  legitimate  authority.''  ^ 

§  269.  The  very  defects  of  the  confederation  seem  also  to  have 
led  Congress,  from  the  pressure  of  public  necessity,  into  some 
usurpations  of  authority,  and  the  States  into  many  gross  infrac- 

1  See  ChisMm  v.  Georgia,  2  DalL  R.  419,  447. 

2  The  Federalist,  No.  22. 
«  The  Federalist,  No.  43. 


186  HISTORY  OF  THE   CONFEDERATION.  [BOOK  H. 

tions  of  its  legitimate  sovereignty.^  "  A  list  of  the  cases  (says 
the  Federalist)  in  which  Congress  have  been  betrayed  or  forced  by 
the  defects  of  the  confederation  into  violations  of  their  chartered 
authorities,  would  not  a  little  surprise  those  who  have  paid  no 
attention  to  the  subject."  ^  Again,  speaking  of  the  western  terri- 
tory, and  referring  to  the  Ordinance  of  1787,  for  the  government 
thereof,  it  is  observed :  "  Congress  have  assumed  the  administra- 
tion of  this  stock.  They  have  begun  to  render  it  productive. 
Congress  have  undertaken  to  do  more ;  they  have  proceeded  to 
form  new  States,  to  erect  temporary  governments,  to  appoint  offi- 
cers for  them,  and  to  prescribe  the  conditions  on  which  such  States 
shall  be  admitted  into  the  confederacy.  All  this  has  been  done, 
and  done  without  the  least  color  of  constitutional  authority.  Yet 
no  blame  has  been  whispered,  no  alarm  has  been  sounded."  ^ 

§  270.  Whatever  may  be  thought  as  to  some  of  these  enu- 
merated defects,  whether  they  were  radical  deficiencies  or  not, 
there  cannot  be  a  doubt  that  others  of  them  went  to  the  very 
marrow  and  essence  of  government.  There  had  been,  and  in  fact 
then  were,  different  parties  in  the  several  States,  entertaining 
opinions  hostile  or  friendly  to  the  existence  of  a  general  govern- 
ment.* The  former  would  naturally  cling  to  the  State  govern- 
ments with  a  close  and  unabated  zeal,  and  deem  the  least  possible 
delegation  of  power  to  the  Union  sufficient,  (if  any  were  to  be 
permitted,)  with  which  it  could  creep  on  in  a  semi-animated  state. 
The  latter  would  as  naturally  desire  that  the  powers  of  the  general 
government  should  have  a  real,  and  not  merely  a  suspended  vital- 
ity ;  that  it  should  act  and  move  and  guide,  and  not  merely  totter 
under  its  own  weight,  or  sink  into  a  drowsy  decrepitude,  powerless 
and  palsied.  But  each  party  must  have  felt  that  the  confederation 
had  at  last  totally  failed  as  an  effectual  instrument  of  government ; 
that  its  glory  was  departed,  and  its  days  of  labor  done  ;  that  it 
stood  the  shadow  of  a  mighty  name  ;  that  it  was  seen  only  as  a 
decayed  monument  of  the  past,  incapable  of  any  enduring  record  ; 
that  the  steps  of  its  decline  were  numbered  and  finished  ;  and  that 
it  was  now  pausing  at  the  very  door  of  that  common  sepulchre  of 
the  dead  whose  inscription  is.  Nulla  vestigia  retrorsum. 

1  The  Federalist,  No.  43  ;  1  Kent's  Comm.  Lect.  10,  p.  201  [2d  edit.  p.  214,  215]. 

2  The  Federalist,  No.  42. 
«  The  Federalist,  No.  38, 

*  5  Marsh.  Life  of  Washington,  33.  [See  Van  Buren,  Political  Parties,  82 ;  Ham- 
mond, Political  Hist,  of  N.  Y.  I.  2.] 


CH.  IV.]     DECLINE  AND  FALL  OF  THE  CONFEDERATION.        ISf 

§  271.  If  tliis  language  should  be  thought  too  figurative  to  suit 
the  sobriety  of  historical  narration,  we  might  avail  ourselves  of 
language  as  strongly  colored  and  as  desponding,  which  was  at  that 
period  wrung  from  the  hearts  of  our  wisest  patriots  and  states- 
men.^ It  is,  indeed,  difficult  to  overcharge  any  picture  of  the 
gloom  and  apprehensions  which  then  pervaded  the  public  councils 
as  well  as  the  private  meditations  of  the  ablest  men  of  the  coun- 
try. We  are  told  by  an  historian  of  almost  unexampled  fidelity 
and  moderation,  and  himself  a  witness  of  these  scenes,^  that  "  the 
confederation  was  apparently  expiring  from  mere  debility.  In- 
deed, its  preservation  in  its  actual  condition,  had  it  been  practica- 
ble, was  scarcely  to  be  desired.  Without  the  ability  to  exercise 
them,  it  withheld  from  the  States  powers  which  are  essential  to 
their  sovereignty.  The  last  hope  of  its  friends  having  been  de- 
stroyed, the  vital  necessity  of  some  measure  which  might  prevent 
the  separation  of  the  integral  parts  of  which  the  American  em- 
pire was  composed,  became  apparent  even  to  those  who  had  been 
unwilling  to  perceive  it."  ^ 

1  5  Marsh.  Life  of  Wash.  92,  93,  94,  95,  96,  104,  113,  114,  118,  120 ;  1  Kent's  Comm. 
202  ;  1  Tuck.  Black.  Comm.  App.  note  D,  142,  156  ;  1  Elliot's  Debates,  208  to  213;  3 
Elliot's  Debates,  30,  31  to  34. 

2  5  Marsh.  Life  of  Wash.  124. 

3  Mr.  Jefferson  uses  the  following  language :  "  The  alliance  between  the  States, 
Hnder  the  old  Articles  of  Confederation,  for  the  purpose  of  joint  defence  against  the 
aggressions  of  Great  Britain,  was  found  insufficient,  as  treaties  of  alliance  generally 
are,  to  enforce  compliance  with  their  mutual  stipulations  ;  and  these  once  fulfilled,  that 
bond  was  to  expire  of  itself,  and  each  State  to  become  sovereign  and  independent  in  all 
things."  4  Jefferson's  Corresp.  444.  Thus,  he  seems  to  have  held  the  extraordinary- 
opinion,  that  the  confederation  was  to  cease  with  the  war,  or,  at  all  events,  with  the 
fulfilment  of  our  treaty  stipulations. 

[In  some  instances,  however,  Mr.  Jefferson  appears  to  have  spoken  of  the  confedera- 
tion as  possessing  considerable  vitality,  energy,  and  vigor. 

In  a  letter  to  John  Adams,  of  the  date  of  February  23,  1787,  referring  to  what  Mr. 
Adams  had  said  of  the  Congress,  that  it  "  is  not  a  legislative  but  a  diplomatic  assem- 
bly," Mr.  Jefferson  says :  "  Separating  into  parts  the  whole  sovereignty  of  our  States, 
some  of  these  parts  are  yielded  to  Congress.     Upon  these  I  should  think  them  both 
legislative  and  executive,  and  that  would  have  been  judiciary  also,  had  not  the  confed- 
eration required  them  for  certain  purposes  to  appoint  a  judiciary.     It  has  accordingly 
een  the  decision  of  our  courts  that  the  confederation  is  a  part  of  the  law  of  the  land, 
^  superior  in  authority  to  the  ordinary  laws,  because  it  cannot  be  altered  by  the  legisla- 
^  any  one  State.     I  doubt  whether  they  are  at  all  a  diplomatic  assembly."    Jef- 
Works,  II.  128  ;  Works  of  John  Adams,  VIII.  433.    Elsewhere  Mr.  Jefferson 
the  opinion  that  the  confederation  had  the  power  to  coerce  the  performance 
^  States  of  national  duties,  and  that  it  was  implied  in  the  compact.    Jeflfer- 
'X  291 ;  Life  of  Madison,  by  Rives,  I.  302.] 


BOOK    III. 

THE  CONSTITUTION   OF  THE  UNITED   STATES. 


CHAPTER   I. 

ORIGIN  AND  ADOPTION  OF  THE   CONSTITUTION. 

§  272.  In  this  state  of  things,  commissioners  were  appointed  by 
the  legislatures  of  Virginia  and  Maryland,  early  in  1785,  to  form  a 
compact  relative  to  the  navigation  of  the  rivers  Potomac  and  Poco- 
moke,  and  the  Chesapeake  Bay.  The  commissioners  having  met 
at  Alexandria  in  Virginia  in  March,  in  that  year,  felt  the  want  of 
more  enlarged  powers,  and  particularly  of  powers  to  provide 
for  a  local  naval  force  and  a  tariff  of  duties  upon  imports. ^ 
Upon  receiving  their  recommendation,  the  legislature  of  Virginia 
passed  a  resolution  for  laying  the  subject  of  a  tariff  before  all  the 
States  composing  the  Union.  Soon  afterwards,  in  January,  1786, 
the  legislature  adopted  another  resolution,  appointing  commission- 
ers, "  who  were  to  meet  such  as  might  be  appointed  by  the  other 
States  in  the  Union  at  a  time  and  place  to  be  agreed  on,  to  take 
into  consideration  the  trade  of  the  United  States ;  to  examine  the 
relative  situation  and  trade  of  the  States  ;  to  consider  how  far  a 
uniform  system  in  their  commercial  relations  may  be  necessary  to 
their  common  interest  and  their  permanent  harmony ;  and  to  re- 
port to  the  several  States  such  an  act,  relative  to  this  great  object, 
as,  when  unanimously  ratified  by  them,  will  enable  the  United 
States  in  Congress  assembled  to  provide  for  the  same."  ^ 

§  273.   These  resolutions  were  communicated  to  the  States,  and 

1  [Rives,  Life  of  Madison,  I.  548 ;  n.  57.] 

2  5  Marsh.  Life  of  Wash.  90,  91 ;  1  Kent's  Comm.  203 ;  [Rives,  Life  of  Madison. 
II.  60.] 


d.  I.J  ORIGIN  AND  ADOPTION   OF  THE   CONSTITUTION.  189 

a  convention  of  commissioners  from  five  States  only,  namely,  New 
York,  New  Jersey,  Pennsylvania,  Delaware,  and  Virginia,  met  at 
Annapolis  in  September,  1786.^  After  discussing  the  subject, 
they  deemed  more  ample  powers  necessary,  and  as  well  from  this 
consideration,  as  because  a  small  number  only  of  the  States  was 
represented,  they  agreed  to  come  to  no  decision,  but  to  frame  a 
report  to  be  laid  before  the  several  States,  as  well  as  before  Con- 
gress.2  In  this  report  they  recommended  the  appointment  of 
commissioners  from  all  the  States,  "  to  meet  at  Philadelphia  on  the 
second  Monday  of  May,  then  next,  to  take  into  consideration  the 
situation  of  the  United  States ;  to  devise  such  further  provisions 
as  shall  appear  to  them  necessary  to  render  the  constitution  of  the 
Federal  government  adequate  to  the  exigencies  of  the  Union ;  and 
to  report  such  an  act  for  that  purpose  to  the  United  States  in  Con- 
gress assembled,  as,  when  agreed  to  by  them,  and  afterwards  con- 
firmed by  the  legislature  of  every  State,  will  effectually  provide  for 
the  same."  ^ 

§  274.   On   receiving  this   report,  the   legislature  of  Virginia 
passed  an  act  for  the  appointment  of  delegates  to  meet  such  as 

1  1  Amer.  Museum,  267;  2  Pitk.  Hist.  218;  [Rives,  Life  of  Madison,  II.  98,  117, 
125.] 

2  5  Marsh.  Life  of  Wash.  97;  2  Pitk.  218;  1  U.  S.  Laws,  (Bioren  &  Duane's  edit. 
1815),  p.  55,  &c.  to  58. 

8  1  Amer.  Museum,  267,  268;  [Rives,  Life  of  Madison,  IL  127.  The  preamble  of 
this  act  is  worthy  of  preservation  as  a  recognition  of  the  immediate  and  imperative  ne- 
cessity for  radical  changes  in  the  bond*  of  union.  "  Whereas  the  General  Assembly  of 
this  Commonwealth,  taking  into  view  the  actual  situation  of  the  confederacy,  as  well  as 
reflecting  on  the  alarming  representations  made,  from  time  to  time,  by  the  United 
States  in  Congress,  particularly  in  their  act  of  the  15th  day  of  February  last,  can  no 
longer  doubt  that  the  crisis  is  arrived  at  which  the  good  people  of  America  are  to  decide 
the  solemn  question  whether  they  will,  by  wise  and  magnanimous  efforts,  reap  the  just 
fruits  of  that  independence  which  they  have  so  gloriously  acquired,  and  of  that  Union 
which  they  have  cemented  with  so  much  of  their  common  blood  ;  or  whether,  by  giving 
way  to  mutual  jealousies  and  prejudices,  or  to  partial  and  transitory  interests,  they  will 
renounce  the  auspicious  blessings  prepared  for  them  by  the  Revolution,  and  furnish  to 
its  enemies  an  eventual  triumph  over  those  by  whose  virtue  and  valor  it  has  been  accom- 
plished :  and  whereas  the  same  noble  and  extended  policy,  and  the  same  fraternal  and 
affectionate  sentiments  which  originally  determined  the  citizens  of  this  Commonwealth 
to  unite  with  their  brethren  of  the  other  States  in  establishing  a  Federal  government, 
cannot  but  be  felt  with  equal  force  now,  as  motives  to  lay  aside  every  inferior  considera- 
tion and  to  concur  in  such  further  concessions  and  provisions  as  may  be  necessary  to 
secure  the  great  object  for  which  that  government  was  established,  and  to  render  the 
United  States  as  happy  in  peace  as  they  have  been  glorious  in  war."  The  careful 
wording  of  this  preamble  was  due  to  a  desire,  as  Mr.  Madison  says,  "  to  give  this  sub- 
ject a  very  solemn  dress,  and  all  the  weight  that  could  be  derived  from  a  single  State." 
Letter  to  Washington,  Rives's  Life  of  Madison,  II.  135.1 


190  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  III. 

might  be  appointed  by  other  States,  at  Philadelphia.^  The  report 
was  also  received  in  Congress.  But  no  step  was  taken  until  the 
legislature  of  New  York  instructed  its  delegation  in  Congress  to 
move  a  resolution,  recommending  to  the  several  States  to  appoint 
deputies  to  meet  in  convention  for  the  purpose  of  revising  and 
proposing  amendments  to  the  Federal  Constitution.^  On  the  21st 
of  February,  1787,  a  resolution  was  accordingly  moved  and  car- 
ried in  Congress,  recommending  a  convention  to  meet  in  Philadel- 
phia, on  the  second  Monday  in  May  ensuing,  "  for  the  purpose  of 
revising  the  Articles  of  Confederation,  and  reporting  to  Congress 
and  the  several  legislatures  such  alterations  and  provisions  therein, 
as  shall,  when  agreed  to  in  Congress  and  confirmed  by  the  States, 
render  the  Federal  Constitution  adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of  the  Union."  ^  The  alarming 
insurrection  then  existing  in  Massachusetts,  without  doubt,  had  no 
small  share  in  producing  this  result.  The  report  of  Congress  on 
that  subject  at  once  demonstrates  their  fears  and  their  political 
weakness.* 

§  275.  At  the  time  and  place  appointed,  the  representatives  of 
twelve  States  assembled.  Rhode  Island  alone  declined  to  appoint 
any  on  this  momentous  occasion.^  After  very  protracted  delibera- 
tions, the  convention  finally  adopted  the  plan  of  the  present  Con- 
stitution on  the  17th  of  September,  1787  ;  and  by  a  contempora- 
neous resolution,  directed  it  to  be  "  laid  before  the  United  States  in 
Congress  assembled,"  and  declared  their  opinion,  "  that  it  should 
afterwards  be  submitted  to  a  convention  of  delegates  chosen  in 
each  State  by  the  people  thereof,  under  a  recommendation  of  its 
legislature  for  their  assent  and  ratification  "  ;  ^  and  that  each  con- 
vention assenting  to  and  ratifying  the  same  should  give  notice 
thereof  to. Congress.  The  convention,  by  a  further  resolution,  de- 
clared their  opinion,  that  as  soon  as  nine  States  had  ratified  the 
Constitution,  Congress  should  fix  a  day  on  which  electors  should 
be  appointed  by  the  States  which  should  have  ratified  the  same, 

1  Marsh.  Life  of  Wash.  98  ;  [Rives,  Life  of  Madison,  IL  132.] 

2  It  was  carried  in  the  senate  of  the  State  by  a  majority  of  one  only.  5  Marsh.  Life 
of  Wash.  12.5. 

8  2  Pitk.  Hist.  219 ;  5  Marsh.  Life  of  Wash.  124,  125 ;  12  Journ.  of  Congress,  12, 
13,  14;  2  Pitk.  Hist.  219,  220,  222. 

*  2  Pitk.  Hist.  220,  221  ;  Journ.  of  Congress,  Oct.  1786 ;  1  Secret  Journ.  268. 

6  5  Marsh.  Life  of  Wash.  128 ;  [Arnold,  Hist,  of  Rhode  Island,  II.  537.] 

«  5  Marsh.  Life  of  Washington,  128,  129;  Journal  of  Convention,  370;  12  Journ. 
of  Congress,  109;  2  Pitk.  Hist  224,  264  ;  [Rives,  Life  of  Madison.  II.  477.] 


CH.  l]         origin  and  adoption  of  the  constitution.  191 

and  a  day  on  which  the  electors  should  assemble  and  vote  for  the 
president,  and  time  and  place  of  commencing  proceedings  under 
the  Constitution ;  and  that  after  such  publication  the  electors 
should  be  appointed  and  the  senators  and  representatives  elected. 
The  same  resolution  contained  further  recommendations  for  the 
purpose  of  carrying  the  Constitution  into  effect. 

§  276.  The  convention  at  the  same  time  addressed  a  letter  to 
Congress,  expounding  their  reasons  for  their  acts,  from  which  the 
following  extract  cannot  but  be  interesting :  "  It  is  obviously  im- 
practicable (says  the  address)  in  the  Federal  government  of  these 
States,  to  secure  all  rights  of  independent  sovereignty  to  each,  and 
yet  provide  for  the  interest  and  safety  of  all.  Individuals  enter- 
ing into  society  must  give  up  a  share  of  liberty  to  preserve  the 
rest.  The  magnitude  of  the  sacrifice  must  depend  as  well  on  sit- 
uation and  circumstance  as  on  the  object  to  be  obtained.  It  is  at 
all  times  difficult  to  draw  with  precision  the  line  between  those 
rights  which  must  be  surrendered  and  those  which  may  be  re- 
served ;  and  on  the  present  occasion  this  difficulty  was  increased 
by  a  difference  among  the  several  States  as  to  their  situation,  ex- 
tent, habits,  and  particular  interests.  In  all  our  deliberations  on 
this  subject,  we  kept  steadily  in  our  view  that  which  appears  to  us 
the  greatest  interest  of  every  true  American,  the  consolidation  of 
our  Union,  in  which  is  involved  our  prosperity,  felicity,  safety,  per- 
haps our  national  existence.  This  important  consideration,  seri- 
ously and  deeply  impressed  on  our  minds,  led  each  State  in  the 
convention  to  be  less  rigid  on  points  of  inferior  magnitude  than 
might  have  been  otherwise  expected.  And  thus  the  Constitution, 
which  we  now  present,  is  the  result  of  a  spirit  of  amity,  and  of  that 
mutual  deference  and  concession  which  the  peculiarity  of  our  politi- 
cal situation  rendered  indispensable."  ^ 

§  2T7.  Congress,  having  received  the  report  of  the  convention 
on  the  28th  of  September,  1787,  unanimously  resolved,  "  that  the 
said  report,  with  the  resolutions  and  letter  accompanying  the  same, 
be  transmitted  to  the  several  legislatures  in  order  to  be  submitted 
to  a  convention  of  delegates  chosen  in  each  State  hy  the  people  thereof, 
in  conformity  to  the  resolves  of  the  convention,  made  and  provided 
in  that  case."  ^ 

112  Journ.  of  Congress,  109,  110  ;  Journ.  of  Convention,  367,  368  ;  5  Marsh.  Life 
of  Wash.  129. 

2  5  Marsh.  Life  of  Wash.  128 ;  12  Journ.  of  Congress,  99, 110  ;  Journ.  of  Convention, 
App.  391 ;  [Rives,  Life  of  Madison,  II.  480.] 


192  CONSTITUTION  OF  THE  UNITED   STATES.  [BOOK  IH. 

§  278.  Conventions  in  the  various  States  which  had  been  repre- 
sented in  the  general  convention  were  accordingly  called  by  their 
respective  legislatures ;  and  the  Constitution  having  been  ratified 
by  eleven  out  of  the  twelve  States,  Congress,  on  the  13th  of  Septem- 
ber, 1788,1  passed  a  resolution  appointing  the  first  Wednesday  in 
January  following  for  the  choice  of  electors  of  president ;  the  first 
Wednesday  of  February  following,  for  the  assembling  of  the  elec- 
tors to  vote  for  a  president ;  and  the  first  Wednesday  of  March 
following,  at  the  then  seat  of  Congress  [New  York] ,  the  time  and 
place  for  commencing  proceedings  under  the  Constitution.  Elec- 
tors were  accordingly  appointed  in  the  several  States,  who  met  and 
gave  their  votes  for  a  president ;  and  the  other  elections  for  sena- 
tors and  representatives  having  been  duly  made,  on  Wednesday, 
the  4th  of  March,  1789,  Congress  assembled  and  commenced  pro- 
ceedings under  the  new  Constitution.  A  quorum  of  both  houses, 
however,  did  not  assemble  until  the  6th  of  April,  when,  the  votes 
for  president  being  counted,  it  was  found  that  George  Washington 
was'  unanimously  elected  president,  and  John  Adams  was  elected 
vice-president.^  On  the  30th  of  April  President  Washington  was 
sworn  into  office,  and  the  government  then  went  into  full  opera- 
tion in  all  its  departments. 

§  279.  North  Carolina  had  not,  as  yet,  ratified  the  Constitution. 
The  first  convention  called  in  that  State,  in  August,  1788,  refused 
to  ratify  it  without  some  previous  amendments  and  a  declaration  of 
rights.  In  a  second  convention,  however,  called  in  November, 
1789,  this  State  adopted  the  Constitution.^  The  State  of  Rhode 
Island  had  declined  to  call  a  convention  ;  but,  finally,  by  a  conven- 
tion held  in  May,  1790,  its  assent  was  obtained  ;  and  thus  all  the 
thirteen  original  States  became  parties  to  the  new  government.* 

1  Journ.  of  Convention,  App.  449,  450,  451  ;  2  Pitk.  Hist.  291. 

2  5  Marsh.  Life  of  Wash.  133,  151,  152  ;  2  Pitk.  Hist.  317,  318  ;  1  Lloyd's  Debates, 
3,  4,  5,  6. 

8  2  Pitk.  Hist.  283 ;  Journ.  of  Convention,  App.  452 ;  1  Kent's  Coram.  204,  205. 

*  2  Pitk.  Hist.  265  ;  Journ.  of  Convention,  App.  452,  458.  [By  setting  aside  the 
Articles  of  Confederation,  which  by  their  terms  were  to  be  articles  of  "  perpetual  union," 
and  by  substituting  instead  thereof  a  Constitution  to  which  two  of  the  States  had  not 
assented,  those  States  were  at  once  and  effectually  excluded  from  the  Union,  by  a  revo- 
lution in  the  government,  which,  though  peaceful,  was  only  to  be  justified  on  grounds  sim- 
ilar to  those  on  which  any  revolution  can  be  defended  when  the  established  government 
has  ceased  to  accomplish  the  purposes  of  its  creation.  But  though  these  States  were 
thus  cut  off  from  constitutional  affiliation,  they  were  not  put,  in  their  intercourse  with 
the  government  and  in  commercial  regulations,  on  the  footing  of  foreign  nations  ;  but, 
on  the  other  hand,  the  utmost  kindness  and  forbearance  was  exercised  in  the  expecta- 


CH.  I.]  ORIGIN  AND   ADOPTION  OF  THE   CONSTITUTION.  193 

§  280.  Thus  was  achieved  another  and  still  more  glorious 
triumph  in  the  cause  of  national  liberty  than  even  that  which 
separated  us  from  the  mother  country.  By  it  we  fondly  trust 
that  our  republican  institutions  will  grow  up,  and  be  nurtured  into 
more  matured  strength  and  vigor ;  our  independence  be  secured 
against  foreign  usurpation  and  aggression  ;  our  domestic  blessings 
be  widely  diffused  and  generally  felt ;  and  our  union,  as  a  people, 
be  perpetuated,  as  our  own  truest  glory  and  support,  and  as  a 
proud  example  of  a  wise  and  beneficent  government,  entitled  to 
the  respect,  if  not  to  the  admiration  of  mankind.^ 

tion  that  they  would  not  long  continue  to  resist  the  necessities  of  their  situation  and 
persevere  in  their  refusal  to  take  their  proper  places  in  the  American  family.  Hildreth, 
Hist,  of  United  States,  IV.  147,  149;  Pitkin,  Hist,  of  United  States,  II.  336.] 

[^  Local  Self-government.  —  At  this  point  it  may  not  be  inappropriate,  in  view 
of  the  discussions  and  controversies  which  have  arisen  since  this  work  was  published, 
and  which  still  demand  some  portion  of  the  attention  of  both  the  statesman  and  the 
jurist,  to  call  attention  to  certain  principles  and  usages  in  American  constitutional  gov- 
ernment, which,  though  pertaining  more  particularly  to  State  than  to  Federal  policy,  are 
nevertheless  necessarily  had  in  view  when  a  complete  survey  of  our  political  system  is 
desired  and  sought.  We  allude  here  to  the  system  of  local  self-government,  which,  in 
respect  to  local  concerns,  prevails  universally. 

In  another  work  the  present  editor  has  had  occasion  to  say,  that,  "  in  the  examination 
of  American  constitutional  law  we  shall  not  fail  to  notice  the  care  taken  and  the  means 
adopted  to  bring  the  agencies  by  which  power  is  to  be  exercised  as  near  as  possible  to 
the  subjects  upon  which  the  power  is  to  operate.  In  contradistinction  to  those  govern- 
ments where  power  is  concentrated  in  one  man,  or  in  one  or  more  bodies  of  men,  whose 
supervision  and  active  control  extend  to  all  the  objects  of  government  within  the  terri- 
torial limits  of  the  State,  the  American  system  is  one  of  complete  decentralization,  the 
primary  and  vital  idea  of  which  is,  that  local  affairs  shall  be  managed  by  local  authori- 
ties, and  only  general  affairs  by  the  central  authority.  It  was  under  the  control  of  this 
idea  that  a  national  Constitution  was  formed,  under  which  the  States,  Avhile  yielding  to 
the  national  government  complete  and  exclusive  jurisdiction  over  external  affairs,  con- 
ferred upon  it  such  powers  only,  in  regard  to  matters  of  internal  regulation,  as  seemed 
to  be  essential  to  national  union,  strength,  and  harmony,  and  without  which  the  purpose 
in  organizing  the  national  authority  might  have  been  defeated.  It  is  this,  also,  that 
impels  the  several  States,  as  if  by  common  arrangement,  to  subdivide  their  territory 
into  counties,  towns,  road  and  school  districts,  and  to  confer  upon  each  the  powers  of 
local  legislation,  and  also  to  incorporate  cities,  boroughs,  and  villages  wherever  a  dense 
population  requires  different  regulations  from  those  which  are  needful  for  the  rural 
districts.  This  system  is  one  which  almost  seems  a  part  of  the  very  nature  of  the  race 
to  which  we  belong.  A  similar  subdivision  of  the  realm  for  the  purposes  of  municipal 
government  has  existed  in  England  from  the  earliest  ages.  Crabbe's  History  of  English 
Law,  ch.  2;  1  Bl.  Comm.  114;  Hallam's  Middle  Ages,  ch.  8,  pt.  1 ;  2  Kent,  278; 
Vaughan's  Revolutions  in  English  History,  b.  2,  ch.  8.  And  in  America  the  first  set- 
tlers, as  if  instinctively,  adopted  it  in  their  frame  of  government,  and  no  other  has  ever 
supplanted  it,  or  even  found  advocates."     Cooley,  Const.  Lim.  189. 

The  writers  upon  our  civil  polity,  who  have  carefully  studied  its  philosophy,  have  not 
only  taken  notice  of  this  primary  fact,  but  they  have  invariably  attributed  to  it  the  liber- 
VOL.  I.  13 


194  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  IH. 

ties  we  enjoy.  De  Tocqueville  discusses  it  with  clearness,  and  contrasts  it  forcibly  with 
the  Frencli  idea  of  centralization  under  which  constitutional  freedom  has  never  become 
an  established  fact.    Democracy  in  America,  ch.  5. 

The  same  comparison  is  made  by  Dr.  Lieber,  who  shows  that  a  centralized  govern- 
ment, though  it  be  by  representatives  freely  chosen,  must  be  despotic,  as  any  other 
form  of  centralization  necessarily  is.  Civil  Liberty  and  Self-Government,  ch.  21.  Mr. 
Jefferson  in  his  retirement  writes  thus  to  a  friend :  "  The  way  to  have  good  and  safe 
governments  is  not  to  trust  all  to  one,  but  to  divide  it  among  the  many,  distributing  to 
every  one  exactly  the  functions  he  is  competent  to.  Let  the  national  government  be 
intrusted  with  the  defence  of  the  nation,  and  its  foreign  and  federal  relations  ;  the  State 
governments  with  the  civil  rights,  laws,  police,  and  administration  of  what  concerns  the 
State  generally  ;  the  counties  with  the  local  concerns  of  the  counties  ;  and  each  ward 
direct  the  interests  within  itself  It  is  by  dividing  and  subdividing  these  republics,  from 
the  great  national  one  down  through  all  its  subordinations,  until  it  ends  in  the  adminis- 
tration of  every  man's  farm  by  himself;  by  placing  under  every  one  what  his  own  eye 
may  superintend,  that  all  will  be  done  for  the  best.  What  has  destroyed  liberty  and  the 
rights  of  man  in  every  government  which  has  ever  existed  under  the  sun  ?  The  gener- 
alizing and  concentrating  all  cares  and  powers  into  one  body,  no  matter  whether  of 

the  autocrats  of  Russia  or  of  France,  or  of  the  aristocrats  of  a  Venetian  Senate 

The  elementary  republics  of  the  wards,  the  county  republics,  the  State  republics,  and 
the  republic  of  the  Union  would  form  a  gradation  of  authorities,  standing  each  on  the 
basis  of  law,  holding  every  one  its  delegated  share  of  powers,  and  constituting  truly  a 
system  of  fundamental  balances  and  checks  for  the  government.  Where  every  man  is 
a  sharer  in  the  direction  of  his  ward  republic,  or  of  some  of  the  higher  ones,  and  feels 
that  he  is  a  participator  in  the  government  of  affairs,  not  merely  at  an  election  one  day 
in  the  year,  but  every  day ;  when  there  shall  not  be  a  man  in  the  State  who  shall  not  be 
a  member  of  some  one  of  its  councils,  great  or  small,  he  will  let  the  heart  be  torn  out  of 
his  body  sooner  than  his  power  be  wrested  from  him  by  a  Caesar  or  a  Bonaparte."  Let- 
ter to  Cabell,  Jefferson's  Works,  VI.  543.  Mr.  Burke  also  indicates  the  fatal  defect  in 
the  French  system  when  he  says,  **  The  hand  of  authority  was  seen  in  everything  and 
in  every  place.  All,  therefore,  that  happened  amiss,  even  in  domestic  affairs,  was  attrib- 
uted to  the  government ;  and  as  it  always  happens  in  this  kind  of  oflBcious  universal 
interference,  what  began  in  odious  power  ended  always,  I  may  say  without  exception, 
in  contemptible  imbecility."  Thoughts  and  Details  on  Scarcity ;  Works  (Little,  Brown, 
&  Co.'s  ed.  1869),  V.  168. 

Regarding  the  usual  division  of  authority  between  the  States  and  the  lower  munici- 
palities, De  Tocqueville,  speaking  of  New  England  township  government,  says  :  "  In  this 
part  of  the  Union  the  impulsion  of  political  activity  was  given  in  the  township,  and  it 
may  almost  be  said  that  each  of  them  originally  formed  an  independent  nation.  When 
the  kings  of  England  asserted  their  supremacy,  they  were  contented  to  assume  the  central 
power  of  the  State.  The  townships  of  New  England  remained  as  they  were  before,  and, 
although  they  are  now  subject  to  the  State,  they  were  at  first  scarcely  dependent 
upon  it.  It  is  important  to  remember  that  they  have  not  been  invested  with  privileges, 
but  that  they  seem  on  the  contrary  to  have  surrendered  a  portion  of  their  independence 
to  the  State.  The  townships  are  only  subordinate  to  the  States  in  those  interests  which 
I  shall  term  social,  as  they  are  common  to  all  citizens.  They  are  independent  in  all 
that  concerns  themselves,  and  among  the  inhabitants  of  New  England  I  believe  that 
not  a  man  is  to  be  found  who  would  acknowledge  that  the  State  has  any  right  to  inter- 
fere in  their  local  interests."  Democracy  in  America,  ch.  5.  Mr.  Palfrey  goes  more 
into  detail ;  speaking  of  the  New  England  colonies  collectively,  he  says  :  "  While  the 
superior  magistrates  were  elected  by  the  votes  of  the  freemen  of  the  whole  colony  counted 
together,  the  deputies  were  chosen  for  each  town  by  a  majority  of  its  voters The 


CH.  I.]  ORIGIN  AND  ADOPTION  OF   THE  CONSTITUTION.  195 

share  which,  through  their  delegated  voice  in  the  general  courts,  the  towns  had  in  the 
general  legislation,  was  not  the  chief  of  the  functions  which  belonged  to  them.  The 
municipal  jurisdictions  present  a  peculiarity  of  the  social  system  of  New  England,  than 
which  none  more  attracts  at  this  day  the  attention  of  intelligent  strangers,  or  has  had 
more  influence  on  the  condition  and  the  character  of  the  people  through  the  eight  genera- 
tions of  their  history.  The  territory  of  these  States,  with  the  exception  of  that  small  por- 
tion at  the  north  which  remains  unoccupied,  is  laid  oflFinto  districts  of  moderate  extent, 
and  the  inhabitants  of  each  form  a  little  body  politic,  with  an  administration  of  its  own, 
conducted  by  officials  of  its  own  choice,  according  to  its  own  will,  within  certain  limits 
imposed  by  the  higher  common  authority.  With  something  of  the  same  propriety  with 
which  the  nation  may  be  said  to  be  a  confederacy  of  republics  called  States,  each  New 
England  State  may  be  described  as  a  confederacy  of  minor  republics  called  toions.  The 
system  is  the  extreme  opposite  of  a  political  centralization.  To  the  utmost  extent  con- 
sistent with  the  common  action  and  the  common  welfare  of  the  aggregate  of  towns  that 
make  the  State,  the  towns  severally  are  empowered  to  take  care  of  those  interests  of  theirs 
which  they  respectively  can  best  understand,  and  can  most  efficiently  and  most  econom- 
ically provide  for  ;  and  these  are  identical  with  the  interests  which  most  directly  concern 
the  public  security,  comfort,  and  morals.  Thus  it  belongs  to  them,  and  they  are  compelled 
by  general  laws  of  the  States  within  which  they  are  severally  included,  to  protect  the 
public  health  and  order  by  means  of  a  police ;  to  maintain  safe  and  convenient  commu- 
nication about  and  through  their  precincts  by  roads  and  bridges  ;  to  furnish  food,  cloth- 
ing, and  shelter  to  their  poor ;  to  provide  for  the  education  of  all  their  poor  at  their 
common  charge.  By  force  of  this  institution  every  man  in  New  England  belongs  to  a 
small  community  of  neighbors  known  to  the  law  as  a  corporation,  with  rights  and  lia- 
bilities as  such,  capable  of  suing  and  subject  to  be  sued  in  the  courts  of  justice,  in  dis- 
putes with  any  parties  individual  or  corporate.  Once  a  year  the  corporation  chooses  the 
administrators  of  its  affairs,  and  determines  the  amount  of  money  with  which  it  will 
intrust  them,  and  how  this  shall  be  raised.  If  the  State  levies  a  general  tax,  it  is  the 
town  treasuries  that  must  pay  it ;  and  the  State  fixes  the  proportion  due  from  each 
town,  leaving  it  to  the  town  to  distribute  the  burden  of  its  share  in  the  assessment 
among  its  own  people.  As  to  matters  of  their  own  interest,  the  towns  present  their 
petitions,  and  as  to  matters  of  general  concern  they  send  their  advice  to  the  central  author-' 
ities.  By  their  magistrates  they  exercise  a  responsible  supervision  of  the  elections  of 
officers  of  the  town,  the  county,  the  State,  and  the  nation."  And  he  very  justly  adds  : 
"  The  experience  of  later  times  dictated  improvements  of  detail  in  the  municipal  sys- 
tem of  New  England  ;  but  its  outline  was  complete  when  it  was  first  devised."  Hist, 
of  New  England,  II.  11  -  13. 

The  political  organizations  under  the  State  were  less  perfectly  formed,  less  completely 
endowed  with  corporate  life  and  vigor,  and  brought  local  affairs  less  generally  under  local 
control  in  the  Southern  colonies  than  in  the  Northern  ;  but  the  same  principle  of  decen- 
tralization was  recognized,  and  the  difference  of  application  was  due  to  a  difference  of 
circumstances  which  need  not  here  be  gone  into.  So  far  as  there  was  difference  Mr. 
Jefferson  lamented  it,  and  sought  to  put  an  end  to  it  in  Virginia  through  a  division  of 
the  counties  into  hundreds.  "  These  little  republics,"  he  says,  **  would  be  the  main 
strength  of  the  great  one.  We  owe  to  them  the  vigor  given  to  our  Revolution  in  its  com- 
mencement in  the  Eastern  States."  Letter  to  Governor  Tyler,. Jefferson's  Works,  V. 
527.  In  this  Mr.  Jefferson  was  historically  and  literally  correct.  The  effective  resist- 
ance to  the  inroads  of  tyranny  in  New  England  was  through  the  local  municipalities, 
and  the  first  hostile  blow  struck  by  the  crown  was  aimed  at  the  liberties  possessed  and 
exercised  by  Boston  and  the  other  towns  in  the  meetings  of  their  freemen.  Pitkin,  Hist, 
of  United  States,  I.  265-267;  Bancroft,  Hist,  of  United  States,  VI.  518;  Life  of 
Samuel  Adams,  II.  142.    The  earlier  attempts  under  the  Stuarts  to  introduce  arbitrary 


196  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  III. 

authority  through  taking  away  the  colonial  charters  proved  wholly  ineffectual  while  the 
lower  municipal  governments  remained.  When  the  charter  of  Rhode  Island  was  sus- 
pended it  is  said  that  "  the  American  system  of  town  governments,  which  necessity  had  com- 
pelled Rhode  Island  to  initiate  fifty  years  before,  became  the  means  of  preserving  the 
liberty  of  the  individual  citizen  when  that  of  the  State  or  colony  was  crushed."  Ar- 
nold, Hist,  of  Rhode  Island,  ch.  7.  In  Massachusetts,  where  the  civil  polity  had  a 
theological  basis,  it  was  even  insisted  by  the  deputies  that  to  surrender  local  government 
was  contrary  to  the.  Sixth  Commandment ;  for,  said  they,  "  Men  may  not  destroy  their 
political  any  more  than  their  natural  lives."  So  they  clung  to  "  the  civil  liberties  of 
New  England  "  as  "  part  of  the  inheritance  of  their  fathers."  Palfrey,  Hist,  of  New 
England,  III.  301-303;  Bancroft,  Hist,  of  United  States,  11.  125-127  ;  Mass.  Hist. 
Coll.  XXI.  74-81.  The  contest  with  Andros,  as  well  in  New  England  as  in  New 
York  and  New  Jersey,  was  a  struggle  of  the  people  in  defence  of  the  right  of  local 
government.  "  Everywhere  the  people  struggled  for  their  rights  and  deserved  to  be 
free."    Dunlap,  Hist,  of  New  York,  I.  133  :  see  Trumbull,  Hist,  of  Connecticut,  I.  15. 

If  we  question  the  historical  records  more  closely  we  shall  find  that  this  right  of  local 
regulation  has  never  been  understood  to  be  a  grant  from  any  central  authority,  but  it 
has  been  recognized  as  of  course  from  the  first :  just  as  much  of  course,  and  just  as  much 
a  necessary  part  of  the  civil  polity,  as  the  central  authority  itself  Sometimes  it  was  one 
and  sometimes  the  other  which  first  assumed  form  and  organized  vitality,  but  the  prece- 
dence was  determined  by  the  circumstances  which  made  the  one  or  the  other  the  more 
immediate  need.  For  all  practical  purposes  they  may  be  regarded  as  having  been  sim- 
ultaneous in  origin,  and  as  having  sprung  from  an  unquestioning  conviction  among  the 
people  that  each  was  essential,  and  that  both  were  to  run  parallel  to  each  other  indefinitely. 

Such  was  the  system  which  was  found  in  force  when  the  Constitution  of  the  United 
States  superseded  the  Articles  of  Confederation.  Thirteen  States  were  in  existence, 
each  of  which  had  its  subdivisions  of  counties,  towns  or  parishes,  cities,  boroughs,  and 
villages  ;  and  all  these  possessing  powers  of  local  control  more  or  less  extensive.  The 
most  of  the  States  had  established  new  constitutions  which  recognized  these  subdivi- 
sions, without,  however,  as  a  rule,  making  their  perpetuation  in  express  terms  imperative. 
With  this  recognition  they  remained  and  still  remain  a  part  of  the  American  system  as 
in  colonial  times. 

It  may  be  well  now  to  see  what  is  the  theory  of  State  constitutional  law  regarding 
these  political  entities.  Upon  this  subject  it  has  not  often  been  needful  to  examine  very 
closely  the  limitations,  if  any  there  are,  upon  State  power,  because  the  State  has  gener- 
ally abstained  from  asserting  any  unusual  authority,  and  has  confined  itself  to  that  im- 
memorially  exercised.  Certain  principles,  however,  have  been  often  laid  down  by  the 
courts,  to  which  attention  may  be  here  directed. 

1.  The  Federal  government  is  one  of  enumerated  poivers,  the  Constitution  being  the 
measure  thereof,  and  the  powers  not  delegated  thereby  being  reserved  to  the  individual 
States  or  to  the  people.  This  we  need  not  enlarge  upon  here,  or  cite  other  authority 
for  than  the  book  before  us. 

2.  The  powers  of  sovereignty  not  thus  delegated  rest  in  the  people  of  the  individual 
States,  who  confer  the  same  for  ordinary  exercise,  with  such  exceptions  and  limitations 
and  under  such  regulations  as  they  see  fit  to  establish,  upon  the  departments  and  officers 
of  government  which  by  their  constitutions  they  create  for  the  States  respectively. 

3.  The  municipal  organizations  exercise  a  delegated  authority  under  the  State,  and 
may  also  be  regarded  as  governments  of  enumerated  powers.  The  State  legislative 
authority  shapes  their  charters  according  to  its  view  of  what  is  proper  and  politic,  and 
it  determines  their  territorial  extent.  And  upon  both  these  subjects  it  exercises  a  dis- 
cretion to  enlarge,  diminish,  or  wholly  take  away  what  it  has  conferred. 

In  the  eye  of  the  law  they  are  mere  agencies  of  the  State,  created  and  employed  for 


CH.  l]         origin  and  adoption  of  the  constitution.  197 

the  convenience  of  government,  and  the  State  may  therefore  set  aside  their  action  when 
the  purpose  of  their  creation  is  being  disregarded,  or  exercise  a  compulsory  authority 
over  them  whenever  duties  are  neglected  or  unwisely,  negligently,  or  dishonestly  per. 
formed.  See  Booth  v.  Woodbury,  32  Conn.  118  ;  Frost  v.  Belmont,  6  Allen,  152  ;  Paers- 
hurg  V.  Metzker,  21  111.  205  ;  Ottawa  v.  Walker,  21  111.  605 ;  Commonwealth  v.  Pittsburg, 
34  Penn.  St,  496  ;  Abendroth  v.  Greenwich,  29  Conn.  356  ;  New  London  v.  Brainard,  22 
Conn.  552  ;  Bailey  v.  New  York,  3  Hill,  531 ;  People  v.  Draper,  15  N.  Y.  532  ;  Weeks  v. 
Milwaukee,  10  Wis.  242  ;  Indianapolis  v.  Geisel,  19  Ind.  344  ;  State  v.  St.  Louis  County 
Court,  34  Mo.  572 ;  St.  Louis  v.  Allen,  13  Mo.  400;  State  v.  Cowan,  29  Mo.  330;  Mc- 
Kim  V.  Odom,  3  Bland,  407  ;  Hanison  Justices  v.  Holland,  3  Grat.  247  ;  Mills  v.  Wil- 
liams, 11  Ired.  558;  Langworthy  v.  Dubuque,  16  Iowa,  271 ;  State  v.  Branin,  3  Zab.  484  ; 
Aspinwall  v.  Commissioners,  &c.,  22  How.  364.  In  none  of  the  States,  however,  has  it 
been  hitherto  understood  that  when  a  municipal  charter  was  taken  away,  the  exercise 
of  local  authority  terminated  with  it ;  on  the  contrary,  some  general  rule  for  local  gov- 
ernment has  been  universal ;  the  special  charters  have  only  conferred  special  privileges, 
which  when  taken  away  remitted  the  corporators  to  their  previous  condition,  which  was 
one  in  which  they  exercised  under  well-understood  principles  the  usual  powers  of  local 
regulation.  For  a  State  wholly  to  take  away  from  any  of  its  people  these  powers  would 
be  not  only  unprecedented,  but  would  be  so  entirely  opposed  to  the  common  understanding 
of  the  manner  in  which  the  powers  of  government  were  to  be  apportioned  and  exercised 
within  the  State,  that  the  authority  to  do  so  could  not  justly  be  regarded  as  within  any 
grant  which  the  people  of  the  State  have  made  of  the  legislative  authority  to  jtheir  rep- 
resentatives. In  other  words,  the  right  of  local  self-government  is  so  universally  under- 
stood and  conceded ;  its  exercise  has  always  been  so  entirely  without  question  ;  to  dis- 
pense with  it  would  require  and  accomplish  so  complete  a  revolution  in  the  public 
administration,  involving,  as  thoughtful  men  believe,  the  destruction  of  the  chief  prop 
and  support  of  our  liberties,  —  that  its  purposed  continuance  must  be  regarded  as  having 
been  within  the  contemplation  of  the  people  of  every  State,  when  they  framed  their 
Constitution,  and  that  instrument  must  be  read  and  interpreted  accordingly.  Local  self- 
government  is  consequently  matter  of  constitutional  right,  and  the  State  cannot  abolish 
it  and  regulate  the  local  affairs  through  agents  of  its  own  appointment. 

4.  Considered  as  corporations,  the  municipalities  have  a  twofold  aspect.  They  are 
agents  of  the  State  in  government,  and  they  also  have  capacity  to  make  contracts  and 
acquire  property,  as  may  be  needful  or  desirable  in  providing  such  local  conveniences 
for  their  corporators  as  may  be  contemplated  by  the  laws  under  which  they  exist.  2 
Kent,  275  ;  Ang.  &  A.  on  Corp.  §  145 ;  Reynolds  v.  Stark  County,  5  Ohio,  204.  As 
mere  corporations,  buying,  contracting,  holding,  and  improving  property,  they  are  en- 
titled to  the  same  protection  as  all  other  corporations,  and  the  State  cannot  take  away 
what  they  acquire,  nor  devote  to  foreign  uses  that  which  they  have  provided  for  the 
convenience  of  their  people.  Dartmouth  College  v.  Woodward,  4  Wheat.  663,  694,  695  ; 
Trustees  v.  Tatman,  13  111,  30.  A  change  in  corporate  bounds,  a  modification  of  corpo- 
rate authority,  and  sometimes  other  circumstances  may  make  it  necessary  for  the  State 
to  intervene,  and  by  virtue  of  its  sovereign  power  to  take  possession  of  corporate  prop- 
erty with  a  view  to  its  proper  appropriation  or  division ;  but  when  she  shall  do  so,  it 
will  be  as  trustee  merely,  and  her  duty  will  be  to  make  the  appropriation,  not  arbitrarily, 
but  with  due  regard  to  the  purposes  of  its  acquisition,  so  that  the  people  concerned  shall 
still  reap  the  benefit  thereof  so  far  as  the  circumstances  and  the  nature  of  the  case  will 
admit. 

But  while  the  corporations  exist,  though  the  State  may  lay  down  rules  for  the  regu- 
lation of  their  affairs  and  the  management  of  their  property,  it  is  nevertheless  a  part  of 
the  right  of  self-government  that  the  people  concerned  should  choose  their  own  oflScers 
who  are  to  administer  such  rules  and  have  the  care  of  such  property,  and  the  State  can- 


198  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

not  appoint  such  officers,  as  it  might  those  who  are  to  perform  duties  of  a  more  general 
nature  for  the  public  at  large,  such  as  mustering  or  disciplining  the  State  militia,  en- 
forcing the  State  health  and  police  laws,  and  the  like.  See  Warner  v.  People,  2  Denio, 
275  ;  People  v.  Blake,  49  Barb.  9  ;  State  v.  Kenyan,  7  Ohio,  N.  S.  546. 

Such  we  believe  to  be  the  true  doctrine  regarding  these  municipalities.  Instances 
have  perhaps  occurred  in  which  legislative  bodies,  under  the  belief  that  interference  in 
local  matters  was  essential  to  the  correction  of  local  abuses,  have  disregarded  the  usual 
bounds  which  limit  their  action  in  this  direction,  and  taken  upon  themselves  the  per- 
formance of  duties  not  properly  pertaining  to  the  central  authority.  Whether,  if  this 
might  rightfully  be  done,  it  would  be  likely  to  result  in  correcting  more  abuses  than  it 
would  create,  is  not  for  us  to  speculate ;  it  is  enough  that  our  institutions  rest  upon  an 
acceptance  of  the  doctrine  that  matters  purely  local  are  best,  most  economically,  hon- 
estly, and  efficiently  managed  by  the  people  immediately  concerned,  who  can  see  and 
know  and  comprehend  and  personally  supeiTise  them,  and  that  the  local  communities 
should  be  expected  to  rely  upon  themselves  for  the  correction  of  local  evils,  and  not 
upon  any  distant,  imperfectly  informed  and  slightly  interested  body,  which,  while  open 
to  the  same  temptations  as  the  local  authorities,  would  be  neither  under  the  like  restraint 
of  interest,  nor  subject  to  have  its  doings  exposed  to  the  same  watchful  observation  of 
the  parties  concerned.] 


CH.  II.]  OBJECTIONS  TO  THE  CONSTITUTION.  199 


CHAPTER    II. 

OBJECTIONS  TO   THE   CONSTITUTION. 

§  281.  Let  it  not,  however,  be  supposed,  that  a  Constitution, 
which  is  now  looked  upon  with  such  general  favor  and  affection 
by  the  people,  had  no  difficulties  to  encounter  at  its  birth.  The 
history  of  those  times  is  full  of  melancholy  instruction  on  this 
subject,  at  once  to  admonish  us  of  past  dangers,  and  to  awaken  us 
to  a  lively  sense  of  the  necessity  of  future  vigilance.  The  Consti- 
tution was  adopted  unanimously  by  Georgia,  New  Jersey,  and 
Delaware.  It  was  supported  by  large  majorities  in  Pennsylvania, 
Connecticut,  Maryland,  and  South  Carolina.  It  was  carried  in 
the  other  States  by  small  majorities,  and  especially  in  Massachu- 
setts, New  York,  and  Virginia  by  little  more  than  a  preponder- 
ating vote.^  Indeed,  it  is  believed  that  in  each  of  these  States,  at 
the  first  assembling  of  the  conventions,  there  was  a  decided  ma- 
jority opposed  to  the  Constitution.  The  ability  of  the  debates,  the 
impending  evils,  and  the  absolute  necessity  of  the  case,  seem  to 
have  reconciled  some  persons  to  the  adoption  of  it,  whose  opinions 
had  been  strenuously  the  other  way.^  "  In  our  endeavors,"  said 
Washington,  "  to  establish  a  new  general  government,  the  contest, 
nationally  considered,  seems  not  to  have  been  so  much  for  glory 
as  for  existence.  It  was  for  a  long  time  doubtful  whether  we  were 
to  survive,  as  an  independent  republic,  or  decline  from  our  Federal 
dignity  into  insignificant  and  withered  fragments  of  empire."  ^ 

§  282.  It  is  not  difficult  to  trace  some  of  the  more  important 
causes  which  led  to  so  formidable  an  opposition,  and  made  the 
Constitution  at  that  time  a  theme,  not  merely  of  panegyric,  but  of 
severe  invective,  as  fraught  with  the  most  alarming  dangers  to 
public  liberty,  and  at  once  unequal,  unjust,  and  oppressive. 

§  283.   Almost  contemporaneously  with  the  first  proposition  for 

1  2  Pitk.  Hist.  265,  268,  273,  279,  281 ;  North  Amer.  Rev.  Oct.  1827,  p.  279  to  278. 

2  2  Pitk.  Hist.  266,  269,  281  ;  5  Marsh.  Life  of  Wash.  132,  133,  188.  [See  Rives, 
Life  of  Madison,  eh.  35;  Hammond,  Political  History  of  New  York,  ch.  1  ;  Life  of 
Samuel  Adams,  ch.  60 ;  Van  Buren  Political  Parties,  57  ;  Austin's  Life  of  Gerry,  IL 
ch.  2  and  3.] 

*  5  Marshall's  Life  of  Washington,  138. 


200  CONSTITUTION  OF  THE  UNITED   STATES.  [bOOK  III. 

a  confederation,  jealousies  began  to  be  entertained  in  respect  to 
the  nature  and  extent  of  the  authority  which  should  be  exercised 
by  the  national  government.  The  large  States  would  naturally 
feel  that  in  proportion  as  Congress  should  exercise  sovereign  pow- 
ers, their  own  local  importance  and  sovereignty  would  be  dimin- 
ished injuriously  to  their  general  influence  on  other  States  from 
their  strength,  population,  and  character.  On  the  other  hand,  by 
an  opposite  course  of  reasoning,  the  small  States  had  arrived 
nearly  at  the  same  result.  Their  dread  seems  to  have  been  lest 
they  should  be  swallowed  up  by  the  power  of  the  large  States  in 
the  general  government,  through  common  combinations  of  inter- 
est or  ambition.^ 

§  284.  There  was,  besides,  a  very  prevalent  opinion  that  the 
interests  of  the  several  States  were  not  the  same  ;  and  there  had 
been  no  sufficient  experience  during  their  colonial  dependence  and 
intercommunication  to  settle  such  a  question  by  any  general  rea- 
soning, or  any  practical  results.  During  the  period,  therefore,  in 
which  the  confederation  was  under  discussion  in  Congress,  much 
excitement  and  much  jealousy  were  exhibited  on  this  subject. 
The  original  draft  submitted  by  Dr.  Franklin,  in  July,  1775,  con- 
tained a  much  more  ample  grant  of  powers  than  that  actually 
adopted ;  for  Congress  were  to  be  invested  with  power  to  make 
ordinances  relating  "  to  our  general  commerce  or  general  cur- 
rency," to  establish  posts,  <fec.,  and  to  possess  other  important 
powers  of  a  different  character.^  The  draft  submitted  by  Mr. 
Dickenson,  on  the  12th  of  July,  1776,  contains  less  ample  powers, 
but  still  more  broad  than  the  Articles  of  Confederation. ^  In  the 
subsequent  discussions  few  amendments  were  adopted  which  were 
not  of  a  restrictive  character  ;  and  the  real  difficulties  of  the  task 
of  overcoming  the  prejudices,  and  soothing  the  fears  of  the  differ- 
ent States,  are  amply  displayed  in  the  secret  journals  now  made 
public.  In  truth,  the  continent  soon  became  divided  into  two 
great  political  parties,  "  the  one  of  which  contemplated  America 
as  a  nation,  and  labored  incessantly  to  invest  the  Federal  head  with 
powers  competent  to  the  preservation  of  the  Union ;  the  other 
attached  itself  to  the  State  authorities,  viewed  all  the  powers  of 
Congress  with  jealousy,  and  assented   reluctantly  to  measures 

1  5  Marshall's  Life  of  Washington,  130,  131  ;  4  Elliot's  Debates,  &c. 

2  1  Secret  Journals,  285,  Art.  5. 
8  Id.,  290. 


CH.  II.]  OBJECTIONS  TO  THE   CONSTITUTION.  201 

which  would  enable  the  head  to  act  in  any  respect  independently 
of  the  members."  ^  During  the  war,  the  necessities  of  the  coun- 
try confined  the  operations  of  both  parties  within  comparatively 
narrow  limits.  But  the  return  of  peace,  and  the  total  imbecility 
of  the  general  government,  gave  (as  we  have  seen)  increased 
activity  and  confidence  to  both. 

§  285.  The  differences  of  opinion  between  these  parties  were 
too  honest,  too  earnest,  and  too  deep  to  be  reconciled  or  surren- 
dered. They  equally  pervaded  the  public  councils  of  the  States 
and  the  private  intercourse  of  social  life.  They  became  more 
warm,  not  to  say  violent,  as  the  contest  became  more  close  and 
the  exigency  more  appalling.  They  were  inflamed  by  new  causes, 
of  which  some  were  of  a  permanent,  and  some  of  a  temporary 
character.  The  field  of  argument  was  wide ;  and  experience  had 
not  as  yet  furnished  the  advocates  on  either  side  with  such  a  vari- 
ety of  political  tests  as  were  calculated  to  satisfy  doubts,  allay 
prejudices,  or  dissipate  the  fears  and  illusions  of  the  imagination. 

§  286.  In  this  state  of  things  the  embarrassments  of  the  coun- 
try in  its  financial  concerns,  the  general  pecuniary  distress  among 
the  people  from  the  exhausting  operations  of  the  war,  the  total 
prostration  of  commerce,  and  the  languishing  unthriftiness  of 
agriculture,'  gave  new  impulses  to  the  already  marked  political 
divisions  in  the  legislative  councils.  Efforts  were  made,  on  one 
side,  to  relieve  the  pressure  of  the  public  calamities  by  a  resort 
to  the  issue  of  paper-money,  to  tender  laws,  and  instalment  and 
other  laws,  having  for  their  object  the  postponement  of  the  pay- 
ment of  private  debts,  and  a  diminution  of  the  public  taxes.  On 
the  other  side,  public  as  well  as  private  creditors  became  alarmed 
from  the  increased  dangers  to  property,  and  the  increased  facility 
of  perpetrating  frauds  to  the  destruction  of  all  private  faith  and 
credit.  And  they  insisted  strenuously  upon  the  establishment  of 
a  government  and  system  of  laws  which  should  preserve  the 
public  faith,  and  redeem  the  country  from  that  ruin  which  always 
follows  upon  the  violation  of  the  principles  of  justice  and  the 
moral  obligation  of  contracts.  "  At  length,"  we  are  told,^  "  two 
great  parties  were  formed  in  every  State,  which  were  distinctly 
marked,  and  which  pursued  distinct  objects  with  systematic  ar- 
rangement. The  one  struggled  with  unabated  zeal  for  the  exact 
observance  of  public  and  private  engagements.     The  distresses  of 

1  5  Marsh.  Life  of  Washington,  33.  2  5  Marsh.  Life  of  Washington,  83. 


202  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  lU. 

individuals  were,  they  tliought,  to  be  alleviated  by  industry  and 
frugality,  and  not  by  a  relaxation  of  the  laws,  or  by  a  sacrifice  of 
the  rights  of  others.  They  were  consequently  uniform  friends  of 
a  regular  administration  of  justice,  and  of  a  vigorous  course  of 
taxation,  which  would  enable  the  State  to  comply  with  its  engage- 
ments. By  a  natural  association  of  ideas,  they  were  also,  with 
very  few  exceptions,  in  favor  of  enlarging  the  powers  of  the  Fed- 
eral government  and  of  enabling  it  to  protect  the  dignity  and 
character  of  the  nation  abroad,  and  its  interests  at  home.  The 
other  party  marked  out  for  itself  a  more  indulgent  course.  They 
were  uniformly  in  favor  of  relaxing  the  administration  of  justice, 
of  affording  facilities  for  the  payment  of  debts,  or  of  suspending 
their  collection,  and  of  remitting  taxes.  The  same  course  of 
opinion  led  them  to  resist  every  attempt  to  transfer  from  their 
own  hands  into  those  of  Congress  powers  which  were  by  others 
deemed  essential  to  the  preservation  of  the  Union.  In  many  of 
the  States  the  party  last  mentioned  constituted  a  decided  majority 
of  the  people,  and  in  all  of  them  it  was  very  powerful."  Such  is 
the  language  of  one  of  our  best  historians  in  treating  of  the  period 
immediately  preceding  the  formation  of  the  Constitution  of  the 
United  States.^ 

§  287.  Without  supposing  that  the  parties  here  alluded  to  were 
in  all  respects  identified  with  those  of  which  we  have  already 
spoken,  as  contemporaneous  with  the  confederation,  it  is  easy  to 
perceive  what  prodigious  means  were  already  in  existence  to  op- 
pose a  new  constitution  of  government,  which  not  only  transferred 
from  the  States  some  of  the  highest  sovereign  prerogatives,  but 
laid  prohibitions  upon  the  exercise  of  other  powers  which  were  at 
that  time  in  possession  of  the  popular  favor.  The  wonder,  indeed, 
is  not,  under  such  circumstances,  that  the  Constitution  should 
have  encountered  the  most  ardent  opposition,  but  that  it  should 
ever  have  been  adopted  at  all  by  a  majority  of  the  States. 

§  288.  In  the  convention  itself  which  framed  it,  there  was  a 
great  diversity  of  judgment,  and  upon  some  vital  subjects  an  in- 
tense and  irreconcilable  hostility  of  opinion.^    It  is  understood 

1  See  also  5  Marshall's  Life  of  Washington,  130,  131. 

2  2  Pitk.  Hist.  225  to  260 ;  Dr.  Franklin's  Speech,  2  Amer.  Museum,  534,  538 ;  3 
Amer.  Museum,  62,  66,  79,  157,  559,  560;  4  Elliot's  Debates.  Three  members  of  the 
convention,  Mr.  Gerry  of  Massachusetts,  and  Mr,  Mason  and  Mr.  Kandolph  of  Vir- 
ginia, declined  signing  the  Constitution ;  3  Amer.  Museum,  68.  See  also  Mr.  Jay's 
Letter  in  1787 ;  3  Amer.  Museum,  554  to  565. 


CH.  n.]  OBJECTIONS  TO  THE   CONSTITUTION.  203 

that  at  several  periods  the  convention  were  upon  the  point  of 
breaking  up  without  accomplishing  anything.^  In  the  State  con- 
ventions, in  which  the  Constitution  was  presented  for  ratification, 
the  debates  were  long  and  animated  and  eloquent ;  and,  imperfect 
as  the  printed  collections  of  those  debates  are,  enough  remains  to 
establish  the  consummate  ability  with  which  every  part  of  the 
Constitution  was  successively  attacked  and  defended.^  Nor  did 
the  struggle  end  here.  The  parties  which  were  then  formed  con- 
tinued for  a  long  time  afterwards  to  be  known  and  felt  in  our 
legislative  and  other  public  deliberations.  Perhaps  they  have 
never  entirely  ceased. 

§  289.  Perhaps,  from  the  very  nature  and  organization  of  our 
government,  being  partly  federal  and  partly  national  in  its  charac- 
ter, whatever  modifications  in  other  respects  parties  may  undergo, 
there  will  forever  continue  to  be  a  strong  line  of  division  between 
those  who  adhere  to  the  State  governments  and  those  who  adhere 
to  the  national  government,  in  respect  to  principles  and  policy. 
It  was  long  ago  remarked  that  in  a  contest  for  power,  "  the  body 
of  the  people  will  always  be  on  the  side  of  the  State  governments. 
This  will  not  only  result  from  their  love  of  liberty  and  regard  to 
their  own  safety,  but  from  the  strong  principles  of  human  nature. 
The  State  governments  operate  upon  those  familiar  personal  con- 
cerns to  which  the  sensibility  of  individuals  is  awake.  The  dis- 
tribution of  private  justice  in  a  great  measure  belonging  to  them, 
they  must  always  appear  to  the  sense  of  the  people  as  the  imme- 
diate guardians  of  their  rights.  They  will  of  course  have  the 
strongest  hold  on  their  attachment,  respect,  and  obedience."  ^  To 
which  it  may  be  added,  that  the  State  governments  must  naturally 
open  an  easier  field  for  the  operation  of  domestic  ambition,  of  local 
interests,  of  personal  popularity,  and  of  flattering  influence  to  those 
who  have  no  eager  desire  for  a  widespread  fame,  or  no  acquire- 
ments to  justify  it. 

§  290.  On  the  other  hand,  if  the  votaries  of  the  national  gov- 
ernment are  fewer  in  number,  they  are  likely  to  enlist  in  its  favor 
men  of  ardent  ambition,  comprehensive  views,  and  powerful  genius. 
A  love  of  the  Union,  a  sense  of  its  importance,  nay,  of  its  neces- 

1  5  Marshall's  Life  of  Washington,  128. 

2  2  Pitk.  Hist.  265  to  283 ;  [Rives's  Life  of  Madison,  ch.  33  to  36.] 

8  Gen.  Hamilton's  Speech  in  1786  ;  1  Amer.  Museum,  445,  447.    See  also  The  Fed- 
eralist, Nos.  17,  31,  45,  46. 


204  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  III. 

sity,  to  secure  permanence  and  safety  to  our  political  liberty ;  a 
consciousness  that  the  powers  of  the  national  Constitution  are 
eminently  calculated  to  preserve  peace  at  home  and  dignity 
abroad,  and  to  give  value  to  property,  and  system  and  harmony 
to  the  great  interests  of  agriculture,  commerce,  and  manufactures ; 
a  consciousness,  too,  that  the  restraints  which  it  imposes  upon  the 
States  are  the  only  efficient  means  to  preserve  public  and  private 
justice,  and  to  insure  tranquillity  amidst  the  conflicting  interests 
and  rivalries  of  the  States  ;  —  these  will  doubtless  combine  many 
sober  and  reflecting  minds  in  its  support.  If  to  this  number  we 
add  those  whom  the  larger  rewards  of  fame  or  emolument  or  in- 
fluence, connected  with  a  wider  sphere  of  action,  may  allure  to 
the  national  councils,  there  is  much  reason  to  presume  that  the 
Union  will  not  be  without  resolute  friends. 

§  291.  This  view  of  the  subject,  on  either  side,  (for  it  is  the 
desire  of  the  commentator  to  abstain,  as  much  as  possible,  from 
mere  private  political  speculation,)  is  not  without  its  consolations. 
If  there  were  but  one  consolidated  national  government  to  which 
the  people  might  look  up  for  protection  and  support,  they  might  in 
time  relax  in  that  vigilance  and  jealousy  which  seem  so  necessary 
to  the  wholesome  growth  of  republican  institutions.  If,  on  the 
other  hand,  the  State  governments  could  engross  all  the  affections 
of  the  people,  to  the  exclusion  of  the  national  government,  by  their 
familiar  and  domestic  regulations,  there  would  be  danger  that  the 
Union,  constantly  weakened  by  the  distance  and  discouragements 
of  its  functionaries,  might  at  last  become,  as  it  was  under  the  con- 
federation, a  mere  show,  if  not  a  mockery,  of  sovereignty.  So  that 
this  very  division  of  empire  may  in  the  end,  by  the  blessing  of 
Providence,  be  the  means  of  perpetuating  our  rights  and  liberties, 
by  keeping  alive  in  every  State  at  once  a  sincere  love  of  its  own 
government  and  a  love  of  the  Union,  and  by  cherishing  in  differ- 
ent minds  a  jealousy  of  each,  which  shall  check,  as  well  as  en- 
lighten, public  opinion. 

§  292.  The  objections  raised  against  the  adoption  of  the  Consti- 
tution were  of  very  different  natures,  and,  in  some  instances,  of 
entirely  opposite  characters.  They  will  be  found  embodied  in 
various  public  documents,  in  the  printed  opinions  of  distinguished 
men,  in  the  debates  of  the  respective  State  conventions,  and  in  a 
still  more  authentic  shape  in  the  numerous  amendments  proposed 
by  these  conventions,  and  accompanying  their  acts  of  ratification. 


CH.  II.]  OBJECTIONS  TO  THE   CONSTITUTION.  205 

It  is  not  easy  to  reduce  them  all  into  general  heads ;  but  the  most 
material  will  here  be  enumerated,  not  only  to  admonish  us  of  the 
difficulties  of  the  task  of  framing  a  general  government,  but  to 
prepare  us  the  better  to  understand  and  expound  the  Constitution 
itself. 

§  293.  Some  of  the  objections  were  to  the  supposed  defects  and 
omissions  in  the  instrument ;  others  were  to  the  nature  and  extent 
of  the  powers  conferred  by  it ;  and  others,  again,  to  the  fundamen- 
tal plan  or  scheme  of  its  organization. 

(1.)  It  was  objected,  in  the  first  place,  that  the  scheme  of  gov- 
ernment was  radically  wrong,  because  it  was  not  a  confederation 
of  the  States,  but  a  government  over  individuals.^  It  was  said 
that  the  federal  form,  which  regards  the  Union  as  a  confederation 
of  sovereign  States,  ought  to  have  been  preserved ;  instead  of 
which  the  convention  had  framed  a  national  government,  which 
regards  the  Union  as  a  consolidation  of  States.^  This  objection 
was  far  from  being  universal ;  for  many  admitted  that  there  ought 
to  be  a  government  over  individuals  to  a  certain  extent,  but  by  no 
means  to  the  extent  proposed.  It  is  obvious  that  this  objection, 
pushed  to  its  full  extent,  went  to  the  old  question  of  the  confed- 
eration, and  was  but  a  reargument  of  the  point  whether  there 
should  exist  a  national  government  adequate  to  the  protection  and 
support  of  the  Union.  In  its  mitigated  form  it  was  a  mere  ques- 
tion as  to  the  extent  of  powers  to  be  confided  to  the  general  gov- 
ernment, and  was  to  be  classed  accordingly.  It  was  urged,  how- 
ever, with  no  inconsiderable  force  and  emphasis ;  and  its  support- 
ers predicted  with  confidence  that  a  government  so  organized 
would  soon  become  corrupt  and  tyrannical,  "  and  absorb  the  legis- 
lative, executive,  and  judicial  powers  of  the  several  States,  and 
produce  from  their  ruins  one  consolidated  government  which,  from 
the  nature  of  things,  would  be  an  iron-handed  despotism."  ^  Uni- 
form experience  (it  was  said)  had  demonstrated  *  "  that  a  very 
extensive  territory  cannot  be  governed  on  the  principles  of  free- 
dom otherwise  than  by  a  confederacy  of  republics,  possessing  all 
the  powers  of  internal  government,  but  united  in  the  management 
of  their  general  and  foreign  concerns."  ^    Indeed,  any  scheme  of 

1  The  Federalist,  Nos.  38,  39  ;  2  Amer.  Museum,  422 ;  Id.  543,  546. 

2  The  Federalist,  No.  39 ;  Id.  No.  38  ;  2  Pitk.  Hist.  270,  272. 

8  Address  of  the  Minority  of  Penn.  Convention,  2  Amer.  Museum,  542,  543.     See 
also  2  Pitk.  Hist.  272,  273. 
*  2  Amer.  Museum,  542.  6  See  also  2  Amer.  Museum,  422,  423,  424. 


206  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

a  general  government,  however  guarded,  appeared  to  some  minds 
(which  possessed  the  public  confidence)  so  entirely  impracticable, 
by  reason  of  the  extensive  territory  of  the  United  States,  that  they 
did  not  hesitate  to  declare  their  opinion  that  it  would  be  destruc- 
tive of  the  civil  liberty  of  the  citizens.^  And  others  of  equal 
eminence  foretold  that  it  would  commence  in  a  moderate  aristoc- 
racy, and  end  either  in  a  monarchy  or  a  corrupt,  oppressive  aris- 
tocracy .^  It  was  not  denied  that,  in  form,  the  Constitution  was 
strictly  republican  ;  for  all  its  powers  were  derived  directly  or  in- 
directly from  the  people,  and  were  administered  by  functionaries 
holding  their  offices  during  pleasure,  or  for  a  limited  period,  or 
during  good  behavior ;  and  in  these  respects  it  bore  an  exact  simil- 
itude to  the  State  governments,  whose  republican  character  had 
never  been  doubted.^ 

§  294.  But  the  friends  of  the  Constitution  met  the  objection  by 
asserting  the  indispensable  necessity  of  a  form  of  government  like 
that  proposed,  and  demonstrating  the  utter  imbecility  of  a  mere 
confederation,  without  powers  acting  directly  upon  individuals. 
They  considered  that  the  Constitution  was  partly  federal  and 
partly  national  in  its  character  and  distribution  of  powers.  In  its 
origin  and  establishment  it  was  federal.*  In  some  of  its  relations 
it  was  federal,  in  others  national.  In  the  Senate  it  was  federal ; 
in  the  House  of  Representatives  it  was  national ;  in  the  executive  it 
was  of  a  compound  character  ;  in  the  operation  of  its  powers  it 
was  national ;  in  the  extent  of  its  powers  federal.  It  acted  on 
individuals,  and  not  on  States  merely.  But  its  powers  were 
limited,  and  left  a  large  mass  of  sovereignty  in  the  States.  In 
making  amendments,  it  was  also  of  a  compound  character,  requir- 
ing the  concurrence  of  more  than  a  majority,  and  less  than  the 
whole  of  the  States.  So  that  on  the  whole  their  conclusion  was, 
that  "  the  Constitution  is,  in  strictness,  neither  a  national  nor  a 
federal  Constitution,  but  a  composition  of  both.  In  its  foundation 
it  is  federal,  not  national ;  in  the  sources  from  which  the  ordinary 
powers  of  the  government  are  drawn,  it  is  partly  federal  and  partly 
national ;  in  the  operation  of  these  powers  it  is  national,  not  fed- 

1  Yates  and  Lansing's  Letter,  3  Amer.  Museum,  156, 157;  Mr.  Jay's  Letter,  1787,  3 
Amer,  Museum,  554,  562.  The  same  objection  is  repeatedly  taken  notice  of  in  the 
Federalist,  as  one  then  beginning  to  be  prevalent.  The  Federalist,  Nos.  1,  2,  9,  13,  14, 
23  ;  [Life  of  Samuel  Adams,  IIL  251.] 

2  Mr.  George  Mason's  Letter,  2  Amer.  Museum,  534,  536. 

8  The  Federalist,  No.  39.  *  Id. 


CH.  II.]  OBJECTIONS  TO  THE   CONSTITUTION.  207 

eral ;  in  the  extent  of  them,  again,  it  is  federal,  not  national ;  and, 
finally,  in  the  authoritative  mode  of  introducing  amendments  it  is 
neither  wholly  federal  nor  wholly  national.^ 

§  295.  Time  has  in  this,  as  in  many  other  respects,  assuaged 
the  fears  and  disproved  the  prophecies  of  the  opponents  of  the 
Constitution.  It  has  gained  friends  in  its  progress.  The  States 
still  flourish  under  it  with  a  salutary  and  invigorating  energy ;  and 
its  power  of  direct  action  upon  the  people  has  hitherto  proved  a 
common  blessing,  giving  dignity  and  spirit  to  the  government 
adequate  to  the  exigencies  of  war,  and  preserving  us  from  domes- 
tic dissensions  and  unreasonable  burdens  in  times  of  peace. 

§  296.  (2.)  If  the  original  structure  of  the  government  was,  as 
has  been  shown,  a  fertile  source  of  opposition,  another  objection 
of  a  more  wide  and  imposing  nature  was  drawn  from  the  nature 
and  extent  of  its  powers.  This,  indeed,  like  the  former,  gave  rise 
to  most  animated  discussions,  in  which  reason  was  employed  to 
demonstrate  the  mischiefs  of  the  system,  and  imagination  to  por- 
tray them  in  all  the  exaggerations  which  fear  and  prophecy  could 
invent.  Looking  back,  indeed,  to  that  period  with  the  calmness 
with  which  we  naturally  review  events  and  occurrences  which  are 
now  felt  only  as  matters  of  history,  one  is  surprised  at  the  futility 
of  some  of  the  objections,  the  absurdity  of  others,  and  the  over- 
wrought coloring  of  almost  all,  which  were  urged  on  this  head 
against  the  Constitution.  That  some  of  them  had  a  just  founda- 
tion need  not  be  denied  or  concealed  ;  for  the  system  was  human, 
and  the  result  of  compromise  and  conciliation,  in  which  something 
of  correctness  of  theory  was  yielded  to  the  interests  or  preju- 
dices of  particular  States,  and  something  of  inequality  of  benefit 
borne  for  the  common  good. 

§  297.  The  objections  from  dilBferent  quarters  were  not  only  of 
different  degrees  and  magnitude,  but  often  of  totally  opposite  na- 
tures. With  some  persons  the  mass  of  the  powers  was  a  formi- 
dable objection ;  with  others  the  distribution  of  those  powers. 
With  some  the  equality  of  vote  in  the  Senate  was  exceptionable  ; 
with  others  the  inequality  of  representation  in  the  House.  With 
some  the  power  of  regulating  the  times  and  places  of  elections  was 

1  The  Federalist,  No.  39.  See  also  1  Tucker's  Black.  App.  145,  146.  The  whole 
reasoning  contained  in  the  39th  number  of  the  Federalist  (of  which  the  above  is  merely 
a  summary)  deserves  a  thorough  examination  by  every  statesman.  See  also  on  the 
same  subject,  Dane's  App.  §  14,  p.  25,  &c. ;  §  35,  p.  44,  &c. ;  1  Tucker's  Black.  Comm. 
App.  146,  &c. ;  the  Federalist,  No.  9  ;  3  Dall.  R.  473. 


208  CONSTITUTION  OF  THE  UNITED   STATES.  [BOOK  III. 

fatal ;  with  others  the  power  of  regulating  commerce  by  a  bare 
majority.  With  some  the  power  of  direct  taxation  was  an  intol- 
erable grievance  ;  with  others  the  power  of  indirect  taxation  by 
duties  on  imports.  With  some  the  restraint  of  the  State  legis-i 
latures  from  laying  duties  upon  exports  and  passing  ex  post  facto 
laws  was  incorrect ;  with  others  the  lodging  of  tlie  executive 
power  in  a  single  magistrate.^  With  some  the  term  of  office  of 
the  senators  and  representatives  was  too  long ;  with  others  the 
term  of  office  of  the  President  was  obnoxious  to  a  like  censure,  as 
well  as  his  re-eligibility .^  With  some  the  intermixture  of  the 
legislative,  executive,  and  judicial  functions  in  the  Senate  was  a 
mischievous  departure  from  all  ideas  of  regular  government ;  with 
others  the  non-participation  of  the  House  of  Representatives  in  the 
same  functions  was  the  alarming  evil.  With  some  the  powers  of 
the  President  were  alarming  and  dangerous  to  liberty  ;  with  others 
the  participation  of  the  Senate  in  some  of  those  powers.  With 
some  the  powers  of  the  judiciary  were  far  too  extensive ;  with 
others  the  power  to  make  treaties  even  with  the  consent  of  two 
thirds  of  the  Senate.  With  some  the  power  to  keep  up  a  standing 
army  was  a  sure  introduction  to  despotism  ;  with  others  the  power 
over  the  militia.^  With  some  the  paramount  authority  of  the  Con- 
stitution, treaties,  and  laws  of  the  United  States  was  a  dangerous 
feature ;  with  others  the  small  number  composing  the  Senate  and 
the  House  of  Representatives  was  an  alarming  and  corrupting  evil.* 
§  298.  In  the  glowing  language  of  those  times  the  people  were 
told,  "  that  the  new  government  will  not  be  a  confederacy  of 
States,  as  it  ought,  but  one  consolidated  government,  founded 
upon  the  destruction  of  the  several  governments  of  the  States. 
The  powers  of  Congress,  under  the  new  Constitution,  are  complete 
and  unlimited  over  the  purse  and  the  sword,  and  are  perfectly  in- 
dependent of  and  supreme  over  the  State  governments,  whose 
intervention  in  these  great  points  is  entirely  destroyed.  By  vir- 
tue of  their  power  of  taxation.  Congress  may  command  the  whole 
or  any  part  of  the  properties  of  the  people.  They  may  impose 
what  imposts  upon  commerce,  they  may  impose  what  land  taxes, 

1  2  Amer.  Museum,  534,  536,  540 ;  Id.  427,  435  ;  Id.  547,  555. 

'■^  3  Amer.  Museum,  62  ;  2  Pitk.  Hist.  283,  284;  The  Federalist,  Nos.  71,  72. 

8  See  2  Amer.  Museum,  422,  &c. ;  Id.  435  ;  Id.  434  ;  Id.  540,  &c.,  543,  &c. ;  Id.  553 ; 
3  Amer.  Museum,  62;  Id.  157;  Id.  419,  420,  &c. 

*  Many  of  the  objections  are  summed  up  in  the  Federalist,  No.  38,  with  great  force 
and  ability. 


CH.  II.]  OBJECTIONS  TO  THE   CONSTITUTION.  209 

and  taxes,  excises,  and  duties  on  all  instruments,  and  duties  on 
every  fine  article  that  they  may  judge  proper."  "  Congress  may 
monopolize  every  source  of  revenue,  and  thus  indirectly  demolish 
the  State  governments  ;  for  without  funds  they  could  not  exist." 
"  As  Congress  have  the  control  over  the  time  of  the  appointment 
of  the  President,  of  the  senators,  and  of  the  representatives  of  the 
United  States,  they  may  prolong  their  existence  in  office  for  life 
by  postponing  the  time  of  their  election  and  appointment  from 
period  to  period,  under  various  pretences."  "  When  the  spirit  of 
the  people  shall  be  gradually  broken,  when  the  general  government 
shall  be  firmly  established,  and  when  a  numerous  standing  army 
shall  render  opposition  vain,  the  Congress  may  complete  the  sys- 
tem of  despotism  in  renouncing  all  dependence  on  the  people,  by 
continuing  themselves  and  their  children  in  the  government."  ^ 

§  299.  A  full  examination  of  the  nature  and  extent  of  the  ob- 
jections to  the  several  powers  given  to  the  general  government 
will  more  properly  find  a  place  when  those  powers  come  succes- 
sively under  review  in  our  commentary  on  the  different  parts  of 
the  Constitution  itself.  The  outline  here  furnished  may  serve  to 
show  what  those  were  which  were  presented  against  them  as  an 
aggregate  or  mass.  It  is  not  a  little  remarkable  that  some  of  the 
most  formidable  applied  with  equal  force  to  the  Articles  of  Con- 
federation, with  this  difference  only,  that  though  unlimited  in  their 
terms,  they  were  in  some  instances  checked  by  the  want  of  power 
to  carry  them  into  effect,  otherwise  than  by  requisitions  on  the 
States.  Thus  presenting,  as  has  been  justly  observed,  the  extraor- 
dinary phenomenon  of  declaring  certain  powers  in  the  Federal 
government  absolutely  necessary,  and  at  the  same  time  rendering 
them  absolutely  nugatory .2 

§  300.  (3.)  Another  class  of  objections  urged  against  the  Con- 
stitution was  founded  upon  its  deficiencies  and  omissions.  It  can- 
not be  denied  that  some  of  the  objections  on  this  head  were  well 
taken,  and  that  there  was  a  fitness  in  incorporating  some  provision 
on  the  subject  into  the  fundamental  articles  of  a  free  government. 
There  were  others,  again,  which  might  fairly  enough  be  left  to  the 
legislative  discretion  and  to  the  natural  influences  of  the  popular 
voice  in  a  republican  form  of  government.     There  were  others, 

1  Address  of  the  Minority  in  the  Pennsylvania  Convention,  2  Amer.  Museum,  536, 
543,  544,  545.     See  also  the  Address  of  Virginia,  2  Pitk.  History,  334. 

2  The  Federalist,  No.  38. 
VOL.  I.  14 


210  CONSTITUTION   OF  THE   UNITED   STATES.  [BOOK  IH. 

again,  so  doubtful,  both  in  principle  and  policy,  that  they  might 
properly  be  excluded  from  any  system  aiming  at  permanence  in 
its  securities  as  well  as  its  foundations. 

§  301.  Among  the  defects  which  were  enumerated,  none  at- 
tracted more  attention,  or  were  urged  with  more  zeal,  than  the 
want  of  a  distinct  bill  of  rights  which  should  recognize  the  funda- 
mental principles  of  a  free  republican  government,  and  the  right 
of  the  people  to  the  enjoyment  of  life,  liberty,  property,  and  the 
pursuit  of  happiness.  It  was  contended  that  it  was  indispensable 
that  express  provision  should  be  made  for  the  trial  by  jury  in  civil 
cases,  and  in  criminal  cases  upon  a  presentment  by  a  grand  jury 
only  ;  and  that  all  criminal  trials  should  be  public,  and  the  party 
be  confronted  with  the  witnesses  against  him ;  that  freedom  of 
speech  and  freedom  of  the  press  should  be  secured ;  that  there 
should  be  no  national  religion,  and  the  rights  of  conscience  sh6uld 
be  inviolable  ;  that  excessive  bail  should  not  be  required,  nor  cruel 
and  unusual  punishments  inflicted ;  that  the  people  should  have  a 
right  to  bear  arms  ;  that  persons  conscientiously  scrupulous  should 
not  be  compelled  to  bear  arms ;  that  every  person  should  be  enti- 
tled of  right  to  petition  for  the  redress  of  grievances  ;  that  search- 
warrants  should  not  be  granted  without  oath,  nor  general  warrants 
at  all ;  that  soldiers  should  not  be  enlisted,  except  for  a  short, 
limited  term,  and  not  be  quartered  in  time  of  peace  upon  pri- 
vate houses  without  the  consent  of  the  owners  ;  that  mutiny  bills 
should  continue  in  force  for  two  years  only ;  that  causes  once 
tried  by  a  jury  should  not  be  re-examinable  upon  appeal,  otherwise 
than  according  to  the  course  of  the  common  law ;  and  that  the 
powers  not  expressly  delegated  to  the  general  government  should 
be  declared  to  be  reserved  to  the  States.  In  all  these  particulars 
the  Constitution  was  obviously  defective  ;  and  yet  (it  was  con- 
tended) they  were  vital  to  the  public  security.^ 

§  302.  Besides  these,  there  were  other  defects  relied  on,  such  as 
the  want  of  a  suitable  provision  for  a  rotation  in  office,  to  prevent 
persons  enjoying  it  for  life ;  the  want  of  an  executive  council  for 
the  President ;  the  want  of  a  provision  limiting  the  duration  of 
standing  armies ;  the  want  of  a  clause  securing  to  the  people  the 

1  2  Amer.  Museum,  422  to  430  ;  Id.  435,  &c.  ;  Id.  534,  &c.  536,  540,  &c.  553,  &c. 
557;  3  Amer.  Museum,  62;  Id.  157;  Id.  419,  420,  &c. ;  The  Federalist,  No.  38; 
[Rives,  Life  of  Madison,  II.  607,  639 ;  Jefferson's  Works,  IIL  3,  13,  201 ;  Life  of 
Fisher  Ames,  I.  52,  53.] 


CH.  II.]  OBJECTIONS  TO  THE   CONSTITUTION.  211 

enjoyment  of  the  common  law ;  ^  the  want  of  security  for  proper 
elections  of  public  officers ;  the  want  of  a  prohibition  of  members 
of  Congress  holding  any  public  offices,  and  of  judges  holding  any 
other  offices  ;  and  finally,  the  want  of  drawing  a  clear  and  direct 
line  between  the  powers  to  be  exercised  by  Congress  and  by  the 
States. 2 

§  303.  Many  of  these  objections  found  their  way  into  the  amend- 
ments, which,  simultaneously  with  the  ratification,  were  adopted 
in  many  of  the  State  conventions.  With  the  view  of  carrying 
into  effect  popular  will,  and  also  of  disarming  the  opponents  of  the 
Constitution  of  all  reasonable  grounds  of  complaint,  Congress,  at 
its  very  first  session,  took  into  consideration  the  amendments  so 
proposed  ;  and  by  a  succession  of  supplementary  articles  provided, 
in  substance,  a  bill  of  rights,  and  secured  by  constitutional  dec- 
larations most  of  the  other  important  objects  thus  suggested. 
These  articles  (in  all,  twelve)  were  submitted  by  Congress  to  the 
States  for  their  ratification,  and  ten  of  them  were  finally  ratified 
by  the  requisite  number  of  States,  and  thus  became  incorporated 
into  the  Constitution.^  It  is  a  curious  fact,  however,  that,  although 
the  necessity  of  these  amendments  had  been  urged  by  the  enemies 
of  the  Constitution  and  denied  by  its  friends,  they  encountered 
scarcely  any  other  opposition  in  the  State  legislatures  than  what 
was  given  by  the  very  party  which  had  raised  the  objections.*  The 
friends  of  the  Constitution  generally  supported  them  upon  the 
ground  of  a  large  public  policy,  to  quiet  jealousies  and  to  disarm 
resentments. 

§  304.  It  is  perhaps  due  to  the  latter  to  state  that  they  believed 
that  some  of  the  objections  to  the  Constitution  existed  only  in 
imagination,  and  that  others  derived  their  sole  support  from  an 
erroneous  construction  of  that  instrument.^  In  respect  to  a  bill 
of  rights,  it  was  stated  that  several  of  the  State  constitutions  con- 
tained none  in  form,  and  yet  were  not  on  that  account  thought 
objectionable.    That  it  was  not  true  that  the  Constitution  of  the 

1  Mr.  Mason,  2  Amer.  Museum,  534. 

2  2  Amer.  Museum,  426,  428 ;  Id.  534,  537  ;  Id.  549,  557  ;  3  Amer.  Museum,  62 ; 
Id.  419,  420,  &c. ;  2  Pitk.  Hist.  218,  267,  280,  282,  283,  284. 

*  2  Pitk.  Hist.  332,  334.  [These  amendments  were  proposed  and  advocated  by  Mr. 
Madison,  through  whose  efforts  in  the  main  their  passage  through  Congress  was  secured. 
See  Rives,  Life  of  Madison,  II.  38  et  seq. ;  Life,  &c.  of  Fisher  Ames,  I.  52  ;  Van  Buren, 
Political  Parties,  191  et  seq. ;  Hamilton,  History  of  the  Republic,  IV.  23. J 

*  5  Marsh.  Life  of  Wash.  209,  210.  ^  5  Marsh.  Life  of  Wash.  207,  208. 


212  CONSTITUTION  OF  THE  UNITED  STATES.     [BOOK  III. 

United  States  did  not,  in  the  true  sense  of  the  terms,  contain  a 
bill  of  rights.  It  was  emphatically  found  in  those  clauses  which 
respected  political  rights,  the  guaranty  of  republican  forms  of  gov- 
ernment, the  trial  of  crimes  by  jury,  the  definition  of  treason,  the 
prohibition  against  bills  of  attainder  and  ex  post  facto  laws  and 
titles  of  nobility,  the  trial  by  impeachment,  and  the  privilege  of 
the  writ  of  habeas  corpus.  That  a  general  bill  of  rights  would  be 
improper  in  a  Constitution  of  limited  powers  like  that  of  the 
United  States,  and  might  even  be  dangerous,  as  by  containing 
exceptions  from  powers  not  granted  it  might  give  rise  to  implica- 
tions of  constructive  power.  That  in  a  government  like  ours, 
founded  by  the  people  and  managed  by  the  people,  and  especially 
in  one  of  limited  authority,  there  was  no  necessity  of  any  bill  of 
rights  ;  for  all  powers  not  granted  were  reserved,  and  even  those 
granted  might  at  will  be  resumed  or  altered  by  the  people.  That 
a  bill  of  rights  might  be  fit  in  a  monarchy,  where  there  were 
struggles  between  the  crown  and  the  people  about  prerogatives 
and  privileges.  But  here  the  government  is  the  government  of 
the  people  ;  all  its  officers  are  their  officers,  and  they  can  exercise 
no  rights  or  powers  but  such  as  the  people  commit  to  them.  In 
such  a  case  the  silence  of  the  Constitution  argues  nothing.  The 
trial  by  jury,  the  freedom  of  the  press,  and  the  liberty  of  con- 
science are  not  taken  away,  because  they  are  not  secured.  They 
remain  with  the  people  among  the  mass  of  ungranted  powers,  or 
find  an  appropriate  place  in  the  laws  and  institutions  of  each  par- 
ticular State. ^ 

§  305.  Notwithstanding  the  force  of  these  suggestions,  candor 
will  compel  us  to  admit  that,  as  certain  fundamental  rights  were 
secured  by  the  Constitution,  there  seemed  to  be  an  equal  propriety 
in  securing  in  like  manner  others  of  equal  value  and  importance. 
The  trial  by  jury  in  criminal  cases  was  secured ;  but  this  clause 
admitted  of  more  clear  definition  and  of  auxiliary  provisions. 
The  trial  by  jury  in  civil  cases  at  common  law  was  as  dear  to  the 
people,  and  afibrded  at  least  an  equal  protection  to  persons  and 
property.  The  same  remark  may  be  made  of  several  other  pro- 
visions included  in  the  amendments.  But  these  will  more  prop- 
erly fall  under  consideration  in  our  commentary  upon  that  portion 
of  the  Constitution.      The  promptitude,  zeal,  and  liberality  with 

1  The  Federalist,  No.  84 ;  Mr.  Jay's  Address ;  3  Amer.  Museum,  554,  559 ;  2  Amer. 
Museum,  422,  425. 


CH.  II.]  OBJECTIONS  TO  THE  CONSTITUTION.  213 

which  the  friends  of  the  Constitution  supported  these  amendments 
evince  the  good  faith  and  sincerity  of  their  opinions,  and  increase 
our  reverence  for  their  labors,  as  well  as  our  sense  of  their  wis- 
dom and  patriotism.^ 

1  [The  Constitution  was  accepted  and  put  in  force  in  anticipation  of,  and  in  reliance 
upon,  the  adoption  of  these  amendments,  and  by  them  the  instrument  was  completed. 
"I  dwell,"  said  Mr.  Choate,  "  on  that  time  from  1780  to  1789,  because  that  was  our  age 
of  civil  greatness.  Then  first  we  grew  to  be  one.  In  that  time  our  nation  was  bom. 
That  which  went  before  made  us  independent.  Our  better  liberty,  our  law,  our  order, 
our  union,  our  credit,  our  commerce,  our  rank  among  the  nations,  our  page  in  the  great 
history,  we  owe  to  this.  Independence  was  the  work  of  the  higher  passions.  The  Con- 
stitution was  the  slow  product  of  wisdom."  Lecture  on  Jefierson,  Burr,  and  Hamilton, 
1858.] 


214  CONSTITUTION  OF  THE  UNITED  STATES.      [BOOK  III. 


CHAPTER  III. 

NATURE  OF  THE   CONSTITUTION,  —  WHETHER  A   COMPACT. 

§  306.  Having  thus  sketched  out  a  general  history  of  the  origin 
and  adoption  of  the  Constitution  of  the  United  States,  and  a  sum- 
mary of  the  principal  objections  and  difficulties  which  it  had  to 
encounter,  we  approach  the  point  at  which  it  may  be  proper  to 
enter  upon  the  consideration  of  the  actual  structure,  organization, 
and  powers  which  belong  to  it.  Our  main  object  will  henceforth 
be  to  unfold  in  detail  all  its  principal  provisions,  with  such  com- 
mentaries as  may  explain  their  import  and  effect,  and  with  such 
illustrations,  historical  and  otherwise,  as  will  enable  the  reader 
fully  to  understand  the  objections  which  have  been  urged  against 
each  of  them  respectively,  the  amendments  which  have  been  pro- 
posed to  them,  and  the  arguments  which  have  sustained  them  in 
their  present  form. 

§  307.  Before  doing  this,  however,  it  seems  necessary  in  the 
first  place  to  bestow  some  attention  upon  several  points  which 
have  attracted  a  good  deal  of  discussion,  and  which  are  prelim- 
inary in  their  own  nature  ;  and  in  the  next  place  to  consider  what 
are  the  true  rules  of  interpretation  belonging  to  the  instrument. 

§  308.  In  the  first  place,  what  is  the  true  nature  and  import  of 
the  instrument  ?  Is  it  a  treaty,  a  convention,  a  league,  a  contract, 
or  a  compact?  Who  are  the  parties  to  it?  By  whom  was  it 
made  ?  By  whom  was  it  ratified  ?  What  are  its  obligations  ?  By 
whom  and  in  what  manner  may  it  be  dissolved  ?  Who  are  to 
decide  upon  the  supposed  infractions  and  violations  of  it  ?  These 
are  questions  often  asked,  and  often  discussed,  not  merely  for  the 
purpose  of  theoretical  speculation,  but  as  matters  of  practical  im- 
portance, and  of  earnest  and  even  of  vehement  debate.  The 
answers  given  to  them  by  statesmen  and  jurists  are  often  contra- 
dictory and  irreconcilable  with  each  other  ;  and  the  consequences 
deduced  from  the  views  taken  of  some  of  them  go  very  deep  into 
the  foundations  of  the  government  itself,  and  expose  it,  if  not  to 
utter  destruction,  at  least  to  evils  which  threaten  its  existence 
and  disturb  the  just  operation  of  its  powers. 


CH.  III.]  NATURE  OF  THE  CONSTITUTION.  215 

§  309.  It  will  be  our  object  to  present  in  a  condensed  form 
some  of  the  principal  expositions  which  have  been  insisted  on  at 
different  times  as  to  the  nature  and  obligations  of  the  Constitu- 
tion, and  to  offer  some  of  the  principal  objections  which  have  been 
suggested  against  those  expositions.  To  attempt  a  minute  enu- 
meration would  indeed  be  an  impracticable  task ;  and  considering 
the  delicate  nature  of  others,  which  are  still  the  subject  of  heated 
controversy,  where  the  ashes  are  scarcely  yet  cold  which  cover  the 
concealed  fires  of  former  political  excitements,  it  is  sufficiently 
difficult  to  detach  some  of  the  more  important  from  the  mass  of 
accidental  matter  in  which  they  are  involved. 

§  310.  It  has  been  asserted  by  a  learned  commentator,^  that  the 
Constitution  of  the  United  States  is  an  original,  written,  federal, 
and  social  compact,  freely,  voluntarily,  and  solemnly  entered  into 
by  the  several  States,  and  ratified  by  the  people  thereof,  respec- 
tively ;  whereby  the  several  States  and  the  people  thereof  respec- 
tively have  bound  themselves  to  each  other  and  to  the  Federal  gov- 
ernment of  the  United  States,  and  by  which  the  Federal  government 
is  bound  to  the  several  States  and  to  every  citizen  of  the  United 
States.  The  author  proceeds  to  expound  every  part  of  this  defini- 
tion at  large.  It  is  (says  he)  a  compact,  by  which  it  is  distin- 
guished from  a  charter  or  grant,  which  is  either  the  act  of  a  supe- 
rior to  an  inferior,  or  is  founded  upon  some  consideration  moving 
from  one  of  the  parties  to  the  other,  and  operates  as  an  exchange 
or  sale.2  But  here  the  contracting  parties,  whether  considered  as 
States  in  their  political  capacity  and  character,  or  as  individuals, 
are  all  equal ;  nor  is  there  anything  granted  from  one  to  another, 
but  each  stipulates  to  part  with  and  receive  the  same  thing  pre- 
cisely without  any  distinction  or  difference  between  any  of  the 
parties. 

§  311.   It  is  a  Federal  compact.^     Several  sovereign  and  inde- 

1  I  Tucker's  Black.  Comm.  App.  note  D,  p.  140  et  seq. 

2  1  Tucker's  Black.  Comm.  App.  note  D,  p.  141. 

8  Mr.  Jefferson  asserts  that  the  Constitution  of  the  United  States  is  a  compact  be- 
tween the  States.  "  They  entered  into  a  compact,"  says  he,  (in  a  paper  designed  to  be 
adopted  by  the  legislature  of  Virginia  as  a  solemn  protest,)  "  which  is  called  the  Con- 
stitution of  the  United  States  of  America,  by  which  they  agreed  to  unite  in  a  single 
government,  as  to  their  relations  with  each,  and  with  foreign  nations,  and  as  to  certain 
other  articles  particularly  specified."  4  Jefferson's  Corresp.  415.  It  would,  I  imagine, 
be  very  difficult  to  point  out  when  and  in  what  manner  any  such  compact  was  made. 
The  Constitution  was  neither  made  nor  ratified  by  the  States  as  sovereignties  or  political 
communities.    It  was  framed  by  a  convention,  proposed  to  the  people  of  the  States  for 


216  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

pendent  States  may  unite  themselves  together  by  a  perpetual  con- 
federation without  each  ceasing  to  be  a  perfect  State.  They  will 
together  form  a  Federal  republic.  The  deliberations  in  common 
will  offer  no  violence  to  each  member,  though  they  may  in  cer- 
tain respects  put  some  constraint  on  the  exercise  of  it  in  virtue  of 
voluntary  engagements.  The  extent,  modifications,  and  objects  of 
the  Federal  authority  are  mere  matters  of  discretion.^     So  long  as 

their  adoption  by  Congress  ;  and  was  adopted  by  State  conventions,  —  the  immediate 
representatives  of  the  people.  [Mr.  Calhoun  has  enlarged  upon  the  view  here  taken  by 
Mr.  Jefferson  in  two  elaborate  papers  :  the  "  Discourse  on  the  Constitution  and  Gov- 
ernment of  the  United  States,"  Works,  I.  Ill;  and  the  '*  Address  on  the  Relations  of 
the  States  to  the  General  Government,"  Works,  VI.  59,  See  also  the  review  of  this 
work  by  Judge  A.  P.  Upshur,  (Petersburg,  Va.,  1840.)  If,  however,  anything  can  be 
regarded  as  settled  in  the  constitutional  law  of  any  people,  it  must  now  be  looked 
upon  as  placed  beyond  further  controversy,  that  the  Constitution  of  the  United  States 
is  an  instrument  of  government,  agreed  upon  and  established  in  the  several  States  by 
the  people  thereof,  through  representatives  empowered  for  the  purpose,  operative  upon 
the  people  individually  and  collectively,  and,  within  the  sphere  of  its  powers,  upon  the 
government  of  the  States  also.  And  that  the  Union  which  is  perfected  by  means  of  it 
is  indissoluble  through  any  steps  contemplated  by,  or  admissible  under,  its  provisions 
or  on  the  principles  on  which  it  is  based,  and  can  only  be  overthrown  by  physical  force 
effecting  a  revolution.  Such  has  been  the  view  of  the  judicial  department  from  the  first, 
and  the  practice  of  the  legislative  and  executive  departments  has  corresponded  thereto; 
Mr.  Jefferson  himself,  as  Mr.  Calhoun  mournfully  concedes,  (Calhoun's  Works,  I.  3.*>9,) 
having  failed  as  President  to  offer  practical  resistance  to  this  construction  of  the  Con- 
stitution. And  finally  the  people  of  the  country,  when  some  of  the  States  endeavored 
to  treat  the  Constitution  as  a  compact  from  which  they  might  withdraw  when  they 
deemed  its  provisions  violated,  have  resisted  this  doctrine  with  the  utmost  expenditure 
of  military  force,  and  at  an  immense  sacrifice  of  life  and  treasure  have  overthrown  its 
adherents.  In  the  courts,  therefore,  in  the  Cabinet,  in  the  halls  of  legislation,  and  in 
the  arbitrament  of  arms,  the  national  view  has  invariably  prevailed.  It  may  be  added, 
also,  that  the  last  great  struggle  has  had  the  effect  which  able  minds  had  anticipated  as 
the  result  of  the  war,  (see  Life,  &c.,  of  Gouverneur  Morris,  III.  260 ;  Calhoun's  Works, 
I.  361,)  —  to  strengthen  considerably  and  in  some  directions  to  extend  the  national 
authority.  Something  of  this  has  come  from  constitutional  changes  introduced  for  this 
express  purpose;  something  from  the  great  increase  in  Federal  offices,  patronage,  and 
expenditures ;  but  more  than  all  from  the  public  mind  becoming  familiarized  with  the 
employment  by  the  Federal  government  of  tremendous  discretionary  powers  during  the 
existence  of  hostilities,  and  of  unusual  and  somewhat  arbitrary  measures  afterwards  in 
suppressing  disorders  in  the  territory  lately  in  rebellion,  and  in  reconstructing  the  shat- 
tered fabrics  of  State  government.  The  constitution  of  any  nation  is  practically  what 
it  has  become  by  the  practical  construction  of  those  in  authority,  acquiesced  in  by  the 
people  ;  and  if  doubtful  points  have  been  covered  by  that  construction  for  purposes  ap- 
parently beneficial,  and  under  circumstances  which  incline  the  people  to  approval  or  indif- 
ference, there  is  very  great  probability  that  the  ground  thus  occupied  will  be  permanently 
possessed,  and  instead  of  being  afterwards  abandoned  voluntarily,  may  not  even  be  con- 
tested by  those  who  might  have  done  so  with  vigor  and  effect  under  other  circumstances. 
How  far  this  should  be  so  we  do  not  discuss;  that  it  is  so  in  fact  is  unquestionable.] 
I  1  Tucker's  Black.  Comm.  App.  note  1>,  p.  141. 


CH.  III.]  NATURE  OF  THE  CONSTITUTION.  217 

the  separate  organization  of  the  members  remains,  and,  from  the 
nature  of  the  compact,  must  continue  to  exist,  both  for  local  and 
domestic  and  for  Federal  purposes,  the  Union  is  in  fact,  as  well 
as  in  theory,  an  association  of  States,  or  a  confederacy. 

§  312.  It  is  also,  to  a  certain  extent,  a  social  compact.  In  the 
act  of  association,  in  virtue  of  which  a  multitude  of  men  form 
together  a  state  or  nation,  each  individual  is  supposed  to  have 
entered  into  engagements  with  all  to  procure  the  common  wel- 
fare ;  and  all  are  supposed  to  have  entered  into  engagements  with 
each  other  to  facilitate  the  means  of  supplying  the  necessities  of 
each  individual,  and  to  protect  and  defend  him.^  And  this  is  what 
i's  ordinarily  meant  by  the  original  contract  of  society.  But  a  con- 
tract of  this  nature  actually  existed  in  a  visible  form  between 
the  citizens  of  each  State  in  their  several  constitutions.  It  might, 
therefore,  be  deemed  somewhat  extraordinary,  that  in  the  estab- 
lishment of  a  Federal  republic  it  should  have  been  thought  neces- 
sary to  extend  its  operation  to  the  persons  of  individuals,  as  well 
as  to  the  States  composing  the  confederacy. 

§  313.  It  may  be  proper  to  illustrate  the  distinction  between 
federal  compacts  and  obligations  and  such  as  are  social,  by  one  or 
two  examples.2  A  federal  compact,  alliance,  or  treaty  is  an  act  of 
the  state  or  body  politic,  and  not  of  an  individual.  On  the  con- 
trary, a  social  compact  is  understood  to  mean  the  act  of  individ- 
uals about  to  create  and  establish  a  state  or  body  politic  among 
themselves.  If  one  nation  binds  itself  by  treaty  to  pay  a  certain 
tribute  to  another,  or  if  all  the  members  of  the  same  confederacy 
oblige  themselves  to  furnish  their  quotas  of  a  common  expense 
when  required,  —  in  either  of  these  cases  the  state  or  body  politic 
only,  and  not  the  individual,  is  answerable  for  this  tribute  or  quota. 
This  is,  therefore,  a  federal  obligation.  But  where  by  any  com- 
pact, express  or  implied,  a  number  of  persons  are  bound  to  con- 
tribute their  proportions  of  the  common  expenses,  or  to  submit  to 
all  laws  made  by  the  common  consent,  and  where  in  default  of 
compliance  with  these  engagements  the  society  is  authorized  to 
levy  the  contribution  or  to  punish  the  person  of  the  delinquent, 
this  seems  to  be  understood  to  be  more  in  the  nature  of  a  social 
than  a  federal  obligation  .^ 

§  314.  It  is  an  original  compact.  Whatever  political  relation 
existed  between  the  American  colonies  antecedent  to  the  Revolu- 

1  1  Tucker's  Black.  Comm.  App.  note  D,  p.  144.        2  la.  p.  145.        »  i^.  145. 


218  CONSTITUTION  OF   THE  UNITED   STATES.  [BOOK  III. 

tion,  as  constituent  parts  of  the  British  Empire,  or  as  dependencies 
upon  it,  that  relation  was  completely  dissolved  and  annihilated 
from  that  period.  From  the  moment  of  the  Revolution  they  be- 
came severally  independent  and  sovereign  States,  possessing  all 
the  rights,  jurisdictions,  and  authority  that  other  sovereign  states, 
however  constituted,  or  by  whatever  title  denominated,  possess  ; 
and  bound  by  no  ties  but  of  their  own  creation,  except  such  as  all 
other  civilized  nations  are  equally  bound  by,  and  which  together 
constitute  the  customary  law  of  nations. ^ 

§  315.  It  is  a  written  compact.  Considered  as  a  federal  com- 
pact or  alliance  between  the  States,  there  is  nothing  new  or  singu- 
lar in  this  circumstance,  as  all  national  compacts  since  the  inven- 
tion of  letters  have  probably  been  reduced  to  that  form.  But 
considered  in  the  light  of  an  original  social  compact,  the  American 
Revolution  seems  to  have  given  birth  to  this  new  political  phenom- 
enon. In  every  State  a  written  Constitution  was  framed  and 
adopted  by  the  people  both  in  their  individual  and  sovereign 
capacity  and  character.^ 

^  1  Tuck,  Black.  Coram.  App.  note  D,  p.  150.  These  views  are  very  different  from 
those  which  Mr.  Dane  has,  with  so  much  force  and  perspicuity,  urged  in  his  Appendix 
to  his  Abridgment  of  the  Law,  §  2,  p.  10,  &c. 

"  In  order  correctly  to  ascertain  this  rank,  this  linking  together,  and  this  subordina- 
tion, we  must  go  back  as  far  as  January,  1774,  when  the  thirteen  States  existed  constitu- 
tionally, in  the  condition  of  thirteen  British  colonies,  yet,  de  facto,  the  people  of  them 
exercised  original,  sovereign  power  in  their  institution,  in  1774,  of  the  Continental  Con- 
gress; and  especially  in  June,  1775,  then  vesting  in  it  the  great  national  powers  that 
will  be  described ;  scarcely  any  of  which  were  resumed.  The  result  will  show  that,  on 
revolutionary  principles,  the  general  government  was,  by  the  sovereign  acts  of  this  people, 
first  created  de  novo,  and  de  facto  instituted  ;  and,  by  the  same  acts,  the  people  vested  in 
it  very  extensive  powers,  which  have  ever  remained  in  it,  modified  and  defined  by  the 
Articles  of  Confederation,  and  enlarged  and  arranged  anew  by  the  Constitution  of  the 
United  States.  2d.  That  the  State  governments  and  States,  as  free  and  independent 
States,  were,  July  4, 1776,  created  by  the  general  government,  empowered  to  do  it  by  the 
people,  acting  on  revolutionary  principles,  and  in  their  original,  sovereign  capacity ;  and 
that  all  the  State  governments,  as  such,  have  been  instituted  during  the  existence  of  the 
general  government,  and  in  subordination  to  it,  and  two  thirds  of  them  since  the  Con- 
stitution of  the  United  States  was  ordained  and  established  by  the  people  thereof  in  that 
sovereign  capacity.  The  State  governments  have  been,  by  the  people  of  each  State, 
instituted  under,  and  expressly  or  impliedly  in  subordination  to  the  general  govern- 
ment, which  is  expressly  recognized  by  all  to  be  supreme  law ;  and  as  the  power  of  the 
whole  is,  in  the  nature  of  things,  superior  to  the  power  of  a  part,  other  things  being 
equal,  the  power  of  a  State,  a  part,  is  inferior  to  the  power  of  all  the  States.  Asser- 
tions that  each  of  the  twenty-four  States  is  completely  sovereign,  that  is,  as  sovereign  as 
Russia  or  France,  of  course  as  sovereign  as  all  the  States,  and  that  this  sovereignty  is 
above  judicial  cognizance,  merit  special  attention." 

*  1  Tucker's  Black.  Comm.  App.  note  D,  p.  153.  There  is  an  inaccuracy  here ;  Con- 


CH.  III.]  NATURE   OF  THE  CONSTITUTION.  219 

§  816.  It  is  a  compact  freely,  voluntarily,  and  solemnly  entered 
into  by  the  several  States,  and  ratified  by  the  people  thereof  re- 
spectively ;  —  freely,  there  being  neither  external  nor  internal  force 
or  violence  to  influence  or  promote  the  measure,  the  United  States 
being  at  peace  with  all  the  world  and  in  perfect  tranquillity  in  each 
State  ;  voluntarily,  because  the  measure  had  its  commencement 
in  spontaneous  acts  of  the  State  legislatures,  prompted  by  a  sense 
of  the  necessity  of  some  change  in  the  existing  confederation ; 
and  solemnly,  as  having  been  discussed,  not  only  in  the  general 
convention  which  proposed  and  framed  it,  but  afterwards  in  the 
legislatures  of  the  several  States,  and  finally  in  the  conventions 
of  all  the  States,  by  whom  it  was  adopted  and  ratified.^ 

§  317.  It  is  a  compact  by  which  the  several  States  and  the 
people  thereof  respectively  have  bound  themselves  to  each  other 
and  to  the  Federal  government.  The  Constitution  had  its  com- 
mencement with  the  body  politic  of  the  several  States ;  and  its 
final  adoption  and  ratification  was  by  the  several  legislatures 
referred  to  and  completed  by  conventions  especially  called  and 
appointed  for  that  purpose  in  each  State.  The  acceptance  of  the 
Constitution  was  not  only  an  act  of  the  body  politic  of  each  State, 
but  of  the  people  thereof  respectively  in  their  sovereign  character 
and  capacity.  The  body  politic  was  competent  to  bind  itself,  so 
far  as  the  constitution  of  the  State  permitted. ^  But  not  having 
power  to  bind  the  people  in  cases  beyond  their  constitutional 
authority,  the  assent  of  the  people  was  indispensably  necessary  to 
the  validity  of  the  compact,  by  which  the  rights  of  the  people 
might  be  diminished,  or  submitted  to  a  new  jurisdiction,  or  in  any 
manner  affected.  From  hence,  not  only  the  body  politic  of  the 
several  States,  but  all  citizens  thereof,  may  be  considered  as  parties 
to  the  compact,  and  to  have  bound  themselves  reciprocally  to  each 
other  for  the  due  observance  of  it,  and  also  to  have  bound  them- 
selves to  the  Federal  government,  whose  authority  has  been  thereby 
created  and  established.^ 

necticut  did  not  form  a  constitution  until  1818,  and  existed  until  that  period  under  her 
colonial  charter.  Rhode  Island  framed  and  adopted  a  constitution  in  1842.  [But 
until  such  adoption  the  colonial  charter  must  be  considered  as  having  been  accepted  for 
and  as  constituting  a  State  constitution.  This  was  the  view  taken  by  the  Superior 
Court  of  Rhode  Island  in  1786,  when  in  the  case  of  Trevettr.  Pfeerfon,  a  legislative 
act  was  declared  unconstitutional  because  in  conflict  with  the  royal  charter.  See  also 
Luther  V.  Borden,  7  How.  1.] 

1  1  Tucker's  Black.  Coram.  App.  note  D,  p.  155,  156. 

2  1  Tucker's  Black,  Coram.  App.  note  D,  p  169. 
8  1  Tucker's  Black.  Comm.  note  D,  p.  170. 


220  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

§  318.  Lastly,  it  is  a  compact  by  which  the  Federal  government 
is  bound  to  the  several  States  and  to  every  citizen  of  the  United 
States.  Although  the  Federal  government  can  in  no  possible  view 
be  considered  as  a  party  to  a  compact  made  anterior  to  its  exist- 
ence, and  by  which  it  was  in  fact  created,  yet,  as  the  creature  of 
that  compact,  it  must  be  bound  by  it  to  its  creators,  the  several 
States  in  the  Union  and  the  citizens  thereof.  Having  no  existence 
but  under  the  Constitution,  nor  any  rights  but  such  as  that  instru- 
ment confers,  and  those  very  rights  being  in  fact  duties,  it  can 
possess  no  legitimate  power  but  such  as  is  absolutely  necessary  for 
the  performance  of  a  duty  prescribed  and  enjoined  by  the  Consti- 
tution. ^  Its  duties  then  become  the  exact  measure  of  its  powers ; 
and  whenever  it  exerts  a  power  for  any  other  purpose  than  the 
performance  of  a  duty  prescribed  by  the  Constitution,  it  trans- 
gresses its  proper  limits  and  violates  the  public  trust.  Its  duties 
being  moreover  imposed  for  the  general  benefit  and  security  of  the 
several  States  in  their  political  character,  and  of  the  people  both 
in  their  sovereign  and  individual  capacity,  if  these  objects  be  not 
obtained,  the  government  does  not  answer  the  end  of  its  creation. 
It  is,  therefore,  bound  to  the  several  States  respectively,  and  to 
every  citizen  thereof,  for  the  due  execution  of  those  duties  ;  and 
the  observance  of  this  obligation  is  enforced  under  the  solemn 
sanction  of  an  oath  from  those  who  administer  the  government. 

§  319.  Such  is  a  summary  of  the  reasoning  of  the  learned  au- 
thor, by  which  he  has  undertaken  to  vindicate  his  views  of  the 
nature  of  the  Constitution.^    That  reasoning  has  been  quoted  at 

1  1  Tucker's  Black.  Comm.  note  D,  p.  170. 

*  [When,  in  1861,  the  people  of  that  section  of  the  country  in  which  the  doctrines  of 
Mr.  Tucker  had  taken  most  root,  attempted  to  withdraw  from  the  Union  and  establish 
a  government  of  Confederate  States,  they  endeavored  by  their  constitution  to  preclude 
forever  such  a  construction  of  the  instrument  as  had  prevailed  regarding  the  Constitu- 
tion of  the  United  States.  The  preambles  of  the  two  instruments  placed  side  by  side 
will  show  very  distinctly  the  difference  in  the  ends  sought. 

Preamble  to  the  Constitution  of  the  United  States.  "  We,  the  people  of  the  United 
States,  in  order  to  form  a  more  perfect  Union,  establish  justice,  insure  domestic  tranquil- 
lity, provide  for  the  common  defence,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America." 

Preamble  to  the  Constitution  of  the  Confederate  States.  "We,  the  people  of  the  Confed- 
erate States,  and  each  State  acting  in  its  sovereign  and  independent  character,  in  order  to 
form  a  permanent  Federal  government,  establish  justice,  and  secure  the  blessings  of  lib- 
erty to  ourselves  and  our  posterity,  invoking  the  favor  and  guidance  of  Almighty  God, 
do  ordain  and  establish  this  Constitution  for  the  Confederate  States  of  America." 

The  Confederate  Constitution  in  the  main  was  copied  from  that  of  the  United  States, 


CH.  m.]  NATURE  OF  THE  CONSTITUTION.  221 

large,  and  for  the  most  part  in  his  own  words,  not  merely  as  his 
own,  but  as  representing,  in  a  general  sense,  the  opinions  of  a  large 
body  of  statesmen  and  jurists  in  different  parts  of  the  Union, 
avowed  and  acted  upon  in  former  times,  and  recently  revived 
under  circumstances  which  have  given  them  increased  importance 
if  not  a  perilous  influence.^ 

but  its  framers  were  particular  to  state  that  the  powers  vested  ia  the  Congress  were 
delegated,  not  granted  to  that  body. 

How  far  the  purpose  of  these  variations  from  the  Constitution  of  the  Union  was 
accomplished  may  appear  from  the  statement,  doubtless  somewhat  exaggerated,  of  a 
prominent  actor,  who  declares  that  "  in  less  than  a  twelvemonth  after  this  same  boasted 
States-rights  Constitution  was  put  in  operation,  its  very  framers  notoriously,  and  in 
spite  of  all  remonstrances,  succeeded  in  consolidating  all  governmental  power  in  the 
central  agency  at  Richmond,  and,  upon  the  stale  plea  of  military  necessity,  shamelessly 
trod  under  foot  all  the  reserved  rights  of  the  States  and  the  people,  and  organized  an 
irresponsible  military  despotism  in  the  very  bosom  of  the  Ancient  Dominion,  as  harsh 
and  grinding  in  its  character  as  has  ever  heretofore  existed  in  any  age  of  the  world/* 
The  War  of  the  Rebellion,  by  H.  S.  Foote,  p.  49.  The  measures  of  which  Mr.  Foote 
complained  were  disapproved  of  by  the  Vice-President  of  the  Confederacy,  and  were  the 
subject  of  protests  in  some  of  the  States,  especially  in  Georgia ;  but  in  a  life-and-death 
struggle  no  government  is  likely  to  inquire  very  carefully  into  paper  limitations  upon 
its  powers.] 

1  Many  traces  of  these  opinions  will  be  found  in  the  public  debates  in  the  State  legis- 
latures, and  in  Congress  at  different  periods.  In  the  resolutions  of  Mr.  Taylor,  in  the 
Virginia  legislature  in  1798,  it  was  resolved  "  that  this  assembly  doth  explicitly  and 
peremptorily  declare,  that  it  views  the  powers  of  the  Federal  government  as  resulting 
from  the  compact  to  which  the  States  are  parties."  See  Dane's  Appendix,  p.  17.  The 
original  resolution  had  the  word  "  alone  "  after  "  States,"  which  was  struck  out  upon  the 
motion  of  the  original  mover,  it  having  been  asserted  in  the  debate  that  the  people  were 
parties  also,  and  by  some  of  the  speakers  that  the  people  were  exclusively  parties. 

The  Kentucky  resolutions  of  1797  (which  were  drafted  by  Mr.  Jefferson)  declare 
"  that  to  this  compact  [the  Federal  Constitution]  each  State  acceded  as  a  State,  and  is 
an  integral  party."  North  American  Review,  October,  1830,  p.  501,  .545.  In  the 
resolutions  of  the  senate  of  South  Carolina,  in  November,  1817,  it  was  declared,  "that 
the  Constitution  of  the  United  States  is  a  compact  between  the  people  of  the  different 
States  with  each  other,  as  separate  and  independent  sovereignties."     In  November, 

1799,  the  Kentucky  legislature  passed  a  resolution,  declaring  that  the  Federal  States  had 
a  right  to  judge  of  any  infraction  of  the  Constitution,  and  that  a  nullification  by  those 
sovereignties  of  all  unauthorized  acts  done  under  color  of  that  instrument  is  the  rightful 
remedy.    North  American  Review,  Id.  503.     Mr.  Madison,  in  the  Virginia  Report  of 

1800,  reasserts  the  right  of  the  States,  as  parties,  to  decide  upon  the  unconstitutionality 
of  any  measure.  Report,  p.  6,  7,  8,  9.  The  Virginia  legislature,  in  1829,  passed  a 
resolution,  declaring  that  "  the  Constitution  of  the  United  States  being  a  federative 
compact  between  sovereign  States,  in  construing  which  no  common  arbiter  is  known, 
each  State  has  the  right  to  construe  the  compact  for  itself.  3  Am.  An.  Reg. :  Local  His- 
tory, 131.  Mr.  Vice-President  Calhoun's  letter  to  Gov.  Hamilton  of  August  28, 1832, 
contains  a  very  elaborate  exposition  of  this  among  other  doctrines. 

Mr.  Dane,  in  his  Appendix,  (§  3,  p.  11,)  says,  that  for  forty  years  one  great  party  has 
received  the  Constitution  as  a  federative  compact  among  the  States,  and  the  other  great 


222  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

§  320.  It  is  wholly  beside  our  present  purpose  to  engage  in  a 
critical  commentary  upon  the  different  parts  of  this  exposition.  It 
will  be  sufficient,  for  all  the  practical  objects  we  have  in  view,  to 
suggest  the  difficulties  of  maintaining  its  leading  positions,  to  ex- 
pound the  objections  which  have  been  urged  against  them,  and  to 
bring  into  notice  those  opinions,  which  rest  on  a  very  different 
basis  of  principles. 

§  321.  The  obvious  deductions  which  may  be,  and  indeed  have 
been,  drawn  from  considering  the  Constitution  as  a  compact  be- 
tween the  States,  are,  that  it  operates  as  a  mere  treaty  or  conven- 
tion between  them,  and  has  an  obligatory  force  upon  each  State  no 
longer  than  suits  its  pleasure,  or  its  consent  continues  ;  that  each 
State  has  a  right  to  judge  for  itself  in  relation  to  the  nature,  ex- 
tent, and  obligations  of  the  instrument,  without  being  at  all  bound 
by  the  interpretation  of  the  Federal  government,  or  by  that  of  any 
other  State  ;  and  that  each  retains  the  power  to  withdraw  from 
the  confederacy  and  to  dissolve  the  connection,  when  such  shall 
be  its  choice  ;  and  may  suspend  the  operations  of  the  Federal 
government,  and  nullify  its  acts  within  its  own  territorial  limits 
whenever,  in  its  own  opinion,  the  exigency  of  the  case  may  require.^ 

party,  not  as  such  a  compact,  but,  in  the  main,  national  and  popular.  The  grave  debate 
in  the  Senate  of  the  United  States,  on  Mr.  Foot's  resolution,  in  the  winter  of  1830, 
deserves  to  be  read  for  its  able  exposition  of  the  doctrines  maintained  on  each  side.  Mr. 
Dane  makes  frequent  references  to  it  in  his  Appendix.  4  Elliot's  Debates,  315  to  330. 
[See  also  Life  of  Webster,  by  Curtis,  II.  ch.  16  and  19.] 

1  Virginia,  in  the  resolutions  of  her  legislature  on  the  tariff,  in  February,  1829,  de- 
clared, "  that  there  is  no  common  arbiter  to  construe  the  Constitution  ;  being  a  federa- 
tive compact  between  sovereign  States,  each  State  has  a  right  to  construe  the  compact  for 
itself."  9  Dane's  Abridg.  ch.  187,  art.  20,  §  14,  p.  589.  See  also  North  American 
Eeview,  October,  1830,  p.  488  to  528.  The  resolutions  of  Kentucky  of  1798  contain  a 
like  declaration,  that  "  to  this  compact  [the  Constitution]  each  State  acceded  as  a  State, 
and  is  an  integral  party ;  that  the  government  created  by  this  compact  was  not  made 
the  exclusive  or  final  judge  of  the  powers  delegated  to  itself,  &c. ;  but  that,  as  in  all 
other  cases  of  compact  among  parties  having  no  common  judge,  each  party  has  an 
equal  right  to  judge  for  itself,  as  well  of  infractions  as  of  the  mode  and  measures  of  re- 
dress." North  American  Review,  October,  1830,  p.  501.  The  Kentucky  resolutions 
of  1799  go  further,  and  assert  "  that  the  several  States  who  formed  that  instrument 
[the  Constitution],  being  sovereign  and  independent,  have  the  unquestionable  right  to 
judge  of  its  infraction  ;  and  that  a  nullification  by  those  sovereignties  of  all  unauthorized 
acts  done  under  color  of  that  instrument  is  the  rightful  remedy."  North  American 
Review,  Id.  503;  4  Elliot's  Debates,  315,  322.  In  Mr.  Madison's  Report  in  the  Vir- 
ginia legislature,  in  January,  1800,  it  is  also  affirmed  that  the  States  are  parties  to  the 
Constitution  ;  but  by  States  he  here  means  (as  the  context  explains)  the  people  of  the 
States.  The  report  insists  that  the  States  are  in  the  last  resort  the  ultimate  judges  of 
the  infractions  of  the  Constitution,    p.  6,  7,  8,  9. 


CH.  ni.]  NATURE  OF  THE  CONSTITUTION.  223 

These  conclusions  may  not  always  be  avowed  ;  but  they  flow  nat- 
urally from  the  doctrines  which  we  have  under  consideration.^ 
They  go  to  the  extent  of  reducing  the  government  to  a  mere  confed- 
eracy during  pleasure  ;  and  of  thus  presenting  the  extraordinary 
spectacle  of  a  nation  existing  only  at  the  will  of  each  of  its 
constituent  parts. 

§  322.  If  this  be  the  true  interpretation  of  the  instrument,  it 
has  wholly  failed  to  express  the  intentions  of  its  framers,  and 
brings  back,  or  at  least  may  bring  back,  upon  us  all  the  evils  of 
the  old  confederation,  from  which  we  were  supposed  to  have  had  a 
safe  deliverance.  For  the  power  to  operate  upon  individuals,  in- 
stead of  operating  merely  on  States,  is  of  little  consequence,  though 
yielded  by  the  Constitution,  if  that  power  is  to  depend  for  its  exer- 
cise upon  the  continual  consent  of  all  the  members  upon  every 
emergency.  We  have  already  seen  that  the  framers  of  the  instru- 
ment contemplated  no  such  dependence.  Even  under  the  confed- 
eration it  was  deemed  a  gross  heresy  to  maintain  that  a  party  to  a 
compact  has  a  right  to  revoke  that  compact ;  and  the  possibility 
of  a  question  of  this  nature  was  deemed  to  prove  the  necessity  of 
laying  the  foundations  of  our  national  government  deeper  than  in  the 
mere  sanction  of  delegated  authority.^  "  A  compact  between  inde- 
pendent sovereigns,  founded  on  acts  of  legislative  authority,  can 
pretend  to  no  higher  validity  than  a  league  or  treaty  between  the 
parties.  It  is  an  established  doctrine  on  the  subject  of  treaties, 
that  all  the  articles  are  mutually  conditions  of  each  other  ;  that  a 

1  I  do  not  mean  to  assert  that  all  those  who  held  these  doctrines  have  adopted  the 
conclusions  drawn  from  them.  There  are  eminent  exceptions ;  and  among  them  the 
learned  commentator  on  Blackstone's  Commentaries  seems  properly  numbered.  See 
1  Tucker's  Black.  App.  170,  171,  §  8.  See  the  debates  in  the  Senate  on  Mr.  Foot's 
Resolution  in  1830,  and  Mr.  Dane's  Appendix,  and  his  Abridgment  and  Digest,  Vol. 
IX.  ch.  187,  art.  20,  §  13  to  22,  p.  588  et  seq. ;  North  American  Review  for  October, 
1830,  on  the  Debates  on  the  Public  Lands,  p.  481  to  486,  488  to  528;  4  Elliot's  De- 
bates, 315  to  330;  Madison's  Virginia  Report,  Jan.,  1800,  p.  6,  7,  8,  9 ;  4  JefFerson's 
Correspondence,  415;  Vice-President  Calhoun's  letter  to  Gov.  Hamilton,  August  28, 
1832.  [Also  Constitutional  View  of  the  War  between  the  States,  by  Alexander  H. 
Stephens.] 

[See  Mr.  Madison's  explanation  of  the  Virginia  Resolutions,  Writings  of  Madison, 
IV.  95;  North  American  Review,  October,  1830;  Randall's  Jefferson,  II.  451.  See 
also  Mr.  Madison's  elaborate  paper  on  Nullification,  in  his  Writings,  IV,  394.  Cora- 
pare,  as  to  the  right  of  the  States  to  judge  as  to  infractions  of  the  Constitution,  Report 
of  the  Hartford  Convention  of  1814,  in  Dwight's  History  thereof,  p.  361 ;  Niles's  Regis- 
ter, Vol.  VII.  p.  308.] 

2  The  Federalist,  No.  22 ;  Id.  No.  43  :  see  also  Mr.  Patterson's  opinion  in  the  con- 
vention, 4  Elliot's  Debates,  74,  75  ;  and  Yates's  Minutes. 


224  CONSTITUTION  OF  THE  UNITED   STATES.  [BOOK  III. 

breach  of  any  one  article  is  a  breach  of  the  whole  treaty ;  and  that 
a  breach  committed  by  either  of  the  parties  absolves  the  others, 
and  authorizes  them,  if  they  please,  to  pronounce  the  compact 
violated  and  void."  ^  Consequences  like  these,  which  place  the 
dissolution  of  the  government  in  the  hands  of  a  single  State,  and 
enable  it  at  will  to  defeat  or  suspend  the  operation  of  the  laws  of 
the  Union,  are  too  serious  not  to  require  us  to  scrutinize  with  the 
utmost  care  and  caution  the  principles  from  which  they  flow  and 
by  which  they  are  attempted  to  be  justified. 

§  323.  The  word  "  compact,"  like  many  other  important  words 
in  our  language,  is  susceptible  of  different  shades  of  meaning,  and 
may  be  used  in  different  senses.  It  is  sometimes  used  merely  to 
express  a  deliberate  and  voluntary  assent  to  any  act  or  thing. 
Thus,  it  has  been  said  by  Dr.  South,  that  "  in  the  beginnings  of 
speech,  there  was  an  implicit  compact  founded  upon  common  con- 
sent, that  such  words,  voices,  or  gestures  should  be  signs,  whereby 
they  would  express  their  thoughts"  ;'^  where,  it  is  obvious,  that 
nothing  more  is  meant  than  a  mutual  and  settled  appointment  in 
the  use  of  language.  It  is  also  used  to  express  any  agreement  or 
contract  between  parties,  by  which  they  are  bound  andincur  legal 
obligations.^    Thus  we  say  that  one  person  has  entered  into  a 

1  The  Federalist,  No.  43.  Mr.  Madison,  in  the  Virginia  Report  of  January,  1800, 
asserts  (p.  6,  7)  that,  "the  States  being  parties  to  the  constitutional  compact,  and  in 
their  sovereign  capacity,  it  follows  of  necessity  that  there  can  be  no  tribunal  above  their 
authority  to  decide,  in  the  last  resort,  whether  the  compact  made  by  them  be  violated ; 
and  consequently,  that,  as  the  parties  to  it,  they  must  themselves  decide  in  the  last  resort 
such  questions  as  may  be  of  sufficient  magnitude  to  acquire  their  interposition."  Id. 
p.  8,  9. 

[In  the  Report  of  the  Hartford  Convention  of  1814,  it  was  declared  that  "  in  cases 
of  deliberate,  dangerous,  and  palpable  infractions  of  the  Constitution  affecting  the  sov- 
ereignty of  a  State  and  liberties  of  the  people,  it  is  not  only  the  right  but  the  duty  of 
such  a  State  to  interpose  its  authority  for  their  protection,  in  the  manner  best  calculated 
to  secure  that  end.  When  emergencies  occur  which  are  either  beyond  the  reach  of  the 
judicial  tribunals,  or  too  pressing  to  admit  of  the  delay  incident  to  their  forms,  States 
which  have  no  common  umpire  must  be  their  own  judges  and  execute  their  own  decisions." 
Dwight,  Hist.  Hartford  Convention,  361 ;  Niles's  Register,  Vol.  VII.  p.  308.] 

2  Cited  in  Johnson's  Dictionary,  verb  Compact.  See  Heinecc.  Elem.  Juris,  Natur. 
L.  2,  ch.  6,  §  109  to  112. 

3  Pothier  distinguishes  between  a  contract  and  an  agreement.  An  agreement,  he 
says,  is  the  consent  of  two  or  more  persons  to  form  some  engagement,  or  to  rescind  or 
modify  an  engagement  already  made.  "  Duorum  vel  plurium  in  idem  placitum  consen- 
sus." Pand.  Lib.  1,  §  1,  de  Pactis.  An  agreement,  by  which  two  parties  reciprocally 
promise  and  engage,  or  one  of  them  singly  promises  and  engages  to  the  other,  to  give 
some  particular  thing,  or  to  do  or  abstain  from  a  particular  act,  is  a  contract ;  by  which 
he  means  such  an  agreement  as  gives  a  party  the  right  legally  to  demand  its  perform- 
ance.   Pothier,  Oblig.  part  1,  ch.  1,  §  1 ;  art.  1,  §  1.    See  1  Black.  Comm.  44,  45. 


CH.  m.]  NATURE  OF  THE  CONSTITUTION.  225 

compact  with  another,  meaning  that  the  contracting  parties  have 
entered  into  some  agreement  which  is  valid  in  point  of  law,  and 
includes  mutual  rights  and  obligations  between  them.  And  it  is 
also  used,  in  an  emphatic  sense,  to  denote  those  agreements  and 
stipulations  which  are  entered  into  between  nations,  such  as  public 
treaties,  conventions,  confederacies,  and  other  solemn  acts  of  na- 
tional authority. 1  When  we  speak  of  a  compact  in  a  legal  sense, 
we  naturally  include  in  it  the  notion  of  distinct  contracting  par- 
ties, having  mutual  rights  and  remedies  to  enforce  the  obligations 
arising  therefrom.  We  suppose  that  each  party  has  an  equal  and 
independent  capacity  to  enter  into  the  contract,  and  has  an  equal 
right  to  judge  of  its  terms,  to  enforce  its  obligations,  and  to  insist 
npon  redress  for  any  violation  of  them.^  This,  in  a  general  sense, 
is  true  under  our  systems  of  municipal  law,  though  practically 
that  law  stops  short  of  maintaining  it  in  all  the  variety  of  forms 
to  which  modern  refinement  has  pushed  the  doctrine  of  implied 
contracts. 

§  324.  A  compact  may,  then,  be  said  in  its  most  general  sense 
to  import  an  agreement,  according  to  Lord  Coke's  definition,  aggre- 
gatio  mentium,  an  aggregation  or  consent  of  minds  ;  in  its  stricter 
sense  to  import  a  contract  between  parties,  which  creates  obliga- 
tions and  rights  capable  of  being  enforced  and  contemplated  as 
such  by  the  parties,  in  their  distinct  and  independent  characters. 
This  is  equally  true  of  them,  whether  the  contract  be  between 
individuals  or  between  nations.  The  remedies  are,  or  may  be, 
different ;  but  the  right  to  enforce,  as  accessory  to  the  obligation, 
is  equally  retained  in  each  case.  It  forms  the  very  substratum  of 
the  engagement. 

§  325.  The  doctrine  maintained  by  many  eminent  writers  upon 
public  law  in  modern  times  is,  that  civil  society  has  its  foundation 
in  a  voluntary  consent  or  submission  ;  ^  and,  therefore,  it  is  often 
said  to  depend  upon  a  social  compact  of  the  people  composing  the 
nation.  And  this,  indeed,  does  not,  in  substance,  differ  from  the 
definition  of  it  by  Cicero,  Multitudo,  juris  consensu  et  utilitatis 
communione  sociata  ;  that  is,  (as  Burlamaqui  gives  it,)  a  multitude 

1  Vattel,  B.  2,  ch.  12,  §  152 ;  1  Black.  Comm.  43. 

2  2  Black.  Comm.  442. 

8  Woodeson's  Elements  of  Jurisprudence,  21,  22;  1  Wilson's  Law  Lect.  304,  305; 
Vattel,  B.  1,  ch.  1,  §  1,  2 ;  2  Burlamaqui,  part  1,  ch.  2,  3,  4  ;  1  Black.  Comm.  47,  48 ; 
Heinecc.  L.  2,  ch.  1,  §  12  to  18 ;  (2  Turnbull,  Heinecc.  System  of  Universal  Law,  B.  2, 
ch.  1,  §  9  to  12 ;)  Id.  ch.  6,  §  109  to  115. 
VOL.  I.  15 


226  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  TIL 

of  people  united  together  by  a  common  interest,  and  by  common 
laws,  to  which  they  submit  with  one  accord.^ 

1  Burlamaqui,  part  1,  ch.  4,  §  9 ;  Heinecc.  Elem.  Juris.  Natur.  L.  2,  ch.  6,  §  107; 
[Maine,  Ancient  Law,  ch.  9  ;  Lecture  on  the  Social  Compact,  at  Providence,  by  John 
Quincy  Adams,  1842.] 

Mr.  Locke  is  one  of  the  most  eminent  authors  who  have  treated  on  this  subject.  He 
founds  all  civil  government  upon  consent.  "  When,"  says  he,  "  any  number  of  men 
have  so  consented  to  make  a  community  or  government,  they  are  thereby  presently 
incorporated,  and  make  one  body  politic,  wherein  the  majority  have  a  right  to  act,  and  con- 
clude the  rest."  Locke  on  Government,  B.  2,  ch.  8,  §  95.  And  he  considers  this  consent 
to  be  bound  by  the  will  of  the  majority,  as  the  indispensable  result  of  becoming  a 
community ;  "  else,"  says  he,  "  this  original  compact,  whereby  he,  with  others,  incor- 
porates into  one  society,  would  signify  nothing,  and  be  no  compact  at  all."  Locke  on 
Government,  B.  2,  §  96,  97,  98,  99 ;  Id.  §  119,  120.  Dr.  Paley  has  urged  some  very 
forcible  objections  against  this  doctrine,  both  as  matter  of  theory  and  of  fact,  with 
which,  however,  it  is  unnecessary  here  to  intermeddle.  The  discussion  of  them  would 
more  properly  belong  to  lectures  upon  natural  and  political  law.  Paley  on  Moral  and 
Political  Philosophy,  B.  6,  ch.  3.  Mr.  Burke  has,  in  one  of  his  most  splendid  perform- 
ances, made  some  profound  reflections  on  this  subject,  the  conclusion  of  which  seems  to 
be,  that  if  society  is  to  be  deemed  a  contract,  it  is  one  of  eternal  obligation,  and  not 
liable  to  be  dissolved  at  the  will  of  those  who  have  entered  into  it.  The  passage  is  as, 
follows :  "  Society  is  indeed  a  contract.  Subordinate  contracts  for  objects  of  mere 
occasional  interest  may  be  dissolved  at  pleasure.  But  the  State  ought  not  to  be  con- 
sidered as  nothing  better  than  a  partnership  agreement  in  a  trade  of  pepper  and  coffee, 
calico,  or  tobacco,  or  some  other  such  low  concern,  to  be  taken  up  for  a  little  temporary 
interest,  and  to  be  dissolved  by  the  fancy  of  the  parties.  It  is  to  be  looked  on  with 
other  reverence  ;  because  it  is  not  a  partnership  in  things,  subservient  only  to  the  gross 
animal  existence  of  a  temporary  and  perishable  nature.  It  is  a  partnership  in  all 
science,  a  partnership  in  all  art,  a  partnership  in  every  virtue  and  in  all  perfection.  As 
the  ends  of  such  a  partnership  cannot  be  obtained  in  many  generations,  it  becomes  a 
partnership  not  only  between  those  who  are  living,  but  between  those  who  are  living, 
those  who  are  dead,  and  those  who  are  to  be  born.  Each  contract  of  each  particular 
State  is  but  a  clause  in  the  great  primeval  contract  of  eternal  society,  linking  the  lower 
with  the  higher  natures,  connecting  the  visible  and  invisible  world  according  to  a  fixed 
compact,  sanctioned  by  the  inviolable  oath  which  holds  all  physical  and  all  moral 
natures,  each  in  their  appointed  place.  This  law  is  not  subject  to  the  will  of  those  who, 
by  an  obligation  above  them,  and  infinitely  superior,  are  bound  to  submit  their  will  to 
that  law.  The  municipal  corporations  of  that  universal  kingdom  are  not  morally  at 
liberty  at  their  pleasure,  and  on  their  speculations  of  a  contingent  improvement,  wholly 
to  separate  and  tear  asunder  the  bands  of  their  subordinate  community,  and  to  dissolve 
it  into  an  unsocial,  uncivil,  unconnected  chaos  of  elementary  principles.  It  is  the  first 
and  supreme  necessity  only,  —  a  necessity  that  is  not  chosen,  but  chooses,  —  a  necessity 
paramount  to  deliberation,  that  admits  no  discussion,  and  demands  no  evidence,  which 
alone  can  justify  a  resort  to  anarchy.  This  necessity  is  no  exception  to  the  rule  ;  be- 
cause this  necessity  itself  is  a  part,  too,  of  that  moral  and  physical  disposition  of  things 
to  which  man  must  be  obedient  by  consent  or  force.  But  if  that  which  is  only  sub- 
mission to  necessity  should  be  made  the  object  of  choice,  the  law  is  broken,  nature  is 
disobeyed,  and  the  rebellious  are  outlawed,  cast  forth,  and  exiled  from  this  world  of 
reason,  and  order,  and  peace,  and  virtue,  and  fruitful  penitence,  into  the  antagonist  world 
of  madness,  discord,  vice,  confusion,  and  unavailing  sorrow."  Reflections  on  the  Revo- 
lution in  France. 


CH.  III.]  NATURE  OF  THE  CONSTITUTION.  227 

§  326.  Mr.  Justice  Blackstone  has  very  justly  observed  that  the 
theory  of  an  original  contract  upon  the  first  formation  of  society 
is  a  visionary  notion.  "  But  though  society  had  not  its  formal  be- 
ginning from  any  convention  of  individuals  actuated  by  their 
wants  and  fears,  yet  it  is  the  sense  of  their  weakness  and  imper- 
fection that  keeps  mankind  together,  that  demonstrates  the  neces- 
sity of  this  union,  and  that,  therefore,  is  the  solid  and  natual  foun- 
dation as  well  as  the  cement  of  civil  society.  And  this  is  what  we 
mean  by  the  original  contract  of  society ;  which,  though  perhaps 
in  no  instance  it  has  ever  been  formally  expressed  at  the  first  in- 
stitution of  a  State,  yet,  in  nature  and  reason,  must  always  be 
understood  and  implied  in  the  very  act  of  associating  together  ; 
namely,  that  the  whole  should  protect  all  its  parts,  and  that  every 
part  should  pay  obedience  to  the  will  of  the  whole ;  or,  in  other 
words,  that  the  community  should  guard  the  rights  of  each  indi- 
vidual member ;  and  that  in  return  for  this  protection  each  indi- 
vidual should  submit  to  the  laws  of  the  community."  ^  It  is  in 
this  sense  that  the  preamble  of  the  constitution  of  Massachusetts 
asserts  that  "  the  body  politic  is  formed  by  a  voluntary  association 
of  individuals ;  that  it  is  a  social  compact,  by  which  the  whole  peo- 
ple covenants  with  each  citizen,  and  each  citizen  with  the  whole 
people,  that  all  shall  be  governed  by  certain  laws  for  the  common 
good  "  ;  and  that  in  the  same  preamble  the  people  acknowledge 
with  grateful  hearts,  that  Providence  had  afforded  them  an  oppor- 
tunity "  of  entering  into  an  original,  explicit,  and  solemn  compact 
with  each  other,  and  of  forming  a  new  constitution  of  civil  gov- 
ernment for  themselves  and  their  posterity."  It  is  in  this  sense, 
too,  that  Mr.  Chief  Justice  Jay  is  to  be  understood  when  he  asserts  ^ 
that  "  every  State  constitution  is  a  compact  made  by  and  between 
the  citizens  of  a  State  to  govern  themselves  in  a  certain  manner ; 
and  the  Constitution  of  the  United  States  is,  likewise,  a  compact 
made  by  the  people  of  the  United  States,  to  govern  themselves  as 
to  general  objects  in  a  certain  manner."  He  had  immediately 
before  stated,  with  reference  to  the  preamble  of  the  Constitution, 
"  Here  we  see  the  people  acting  as  sovereigns  of  the  whole  coun 

1  1  Black.  Comm.  47.  See  also  1  Hume's  I^ssays,  Essay  12.  Mr.  Hume  considers 
that  the  notion  of  government,  being  universally  founded  in  original  contract,  is  vis- 
ionary, unless  in  the  sense  of  its  being  founded  upon  the  consent  of  those  who  first 
associate  together  and  subject  themselves  to  authority.  He  has  discussed  the  subject  at 
large  in  an  elaborate  essay.     Essay  12,  p.  491.     [See  Maine,  Ancient  Law,  ch.  9.] 

2  Chisholm  V.  State  of  Georgia,  3  Dall.  R.  419 ;  see  also  1  Wilson's  Law  Lect.  305. 


228  CONSTITUTION   OF  THE  UNITED  STATES.  [BOOK  IH. 

try,  and  in  the  language  of  sovereignty,  establishing  a  constitution, 
by  which  it  was  their  will  that  the  State  governments  should  be 
bound,  and  to  which  the  State  constitutions  should  be  made  to 
conform."  ^ 

§  327.  But  although  in  a  general  sense,  and  theoretically  speak- 
ing, the  formation  of  civil  societies  and  states  may  thus  be  said  to 
be  founded  in  a  social  compact  or  contract,  that  is,  in  the  solemn, 
express,  or  implied  consent  of  the  individuals  composing  them, 
yet  the  doctrine  itself  requires  many  limitations  and  qualifications 
when  applied  to  the  actual  condition  of  nations,  even  of  those 
which  are  most  free  in  their  organization. ^  Every  state,  however 
organized,  embraces  many  persons  in  it  who  have  never  assented 
to  its  form  of  government,  and ,  many  who  are  deemed  incapable 
of  such  assent,  and  yet  who  are  held  bound  by  its  fundamental 
institutions  and  laws.  Infants,  minors,  married  women,  persons 
insane,  and  many  others,  are  deemed  subjects  of  a  country,  and 
bound  by  its  laws,  although  they  have  never  assented  thereto,  and 
may  by  those  very  laws  be  disabled  fi'om  such  an  act.  Even  our 
most  solemn  instruments  of  government,  framed  and  adopted  as 
the  constitutions  of  our  State  governments,  are  not  only  not 
founded  upon  the  assent  of  all  the  people  within  the  territorial 
jurisdiction,  but  that  assent  is  expressly  excluded  by  the  very  man- 
ner in  which  the  ratification  is  required  to  be  made.  That  ratifi- 
cation is  restricted  to  those  who  are  qualified  voters ;  and  who  are 
or  shall  be  qualified  voters  is  decided  by  the  majority  in  the  con- 
vention or  other  body  which  submits  the  constitution  to  the  peo- 
ple. All  of  the  American  constitutions  have  been  formed  in  this 
manner.  The  assent  of  minors,  of  women,  and  of  unqualified 
voters  has  never  been  asked  or  allowed ;  yet  these  embrace  a  ma- 
jority of  the  whole  population  in  every  organized  society,  and  are 
governed  by  its  existing  institutions.    Nay,  more  ;  a  majority  only 

1  In  the  ordinance  of  Congress  of  1787,  for  the  government  of  the  territory  of  the 
United  States  northwest  of  river  Ohio,  in  which  the  settlement  of  the  territory  and  the 
establishment  of  several  States  therein  were  contemplated,  it  was  declared  that  certain 
articles  therein  enumerated  "  shall  be  considered  as  articles  of  compact  between  the  origi- 
nal States  and  the  people  and  States  in  the  said  territory,  and  forever  remain  unalter- 
able, unless  by  common  consent."  Here  is  an  express  enumeration  of  parties,  some  of 
■whom  were  not  then  in  existence,  and  the  articles  of  compact  attached  as  such  only, 
when  they  were  brought  into  life.  And  then,  to  avoid  all  doubt  as  to  their  obligatory 
force,  they  were  to  be  unalterable  except  by  common  consent.  One  party  could  not 
change  or  absolve  itself  from  the  obligation  to  obey  them. 

2  See  Burke's  Appeal  from  the  New  to  the  Old  Whigs. 


OH.  III.]  NATURE  OF  THE  OONSTITUTION.  229 

of  the  qualified  voters  is  deemed  sufi&cient  to  change  the  funda- 
mental institutions  of  the  State,  upon  the  general  principle  that 
the  majority  has  at  all  times  a  right  to  govern  the  minority,  and 
to  bind  the  latter  to  obedience  to  the  will  of  the  former.  And  if 
more  than  a  plurality  is  in  any  case  required  to  amend  or  change 
the  actual  constitution  of  the  society,  it  is  a  matter  of  political 
choice  with  the  majority  for  the  time  being,  and  not  of  right  on 
the  part  of  the  minority. 

§  328.  It  is  a  matter  of  fact,  therefore,  in  the  history  of  our  own 
forms  of  government,  that  they  have  been  formed  without  the  con- 
sent, express  or  implied,  of  the  whole  people ;  and  that,  although 
firmly  established,  they  owe  their  existence  and  authority  to  the 
simple  will  of  the  majority  of  the  qualified  voters.  There  is  not 
probably  a  single  State  in  the  Union  whose  constitution  has  not 
been  adopted  against  the  opinions  and  wishes  of  a  large  minority, 
even  of  the  qualified  voters ;  and  it  is  notorious  that  some  of  them 
have  been  adopted  by  a  small  majority  of  votes.  How,  then,  can 
we  assert  with  truth,  that  even  in  our  free  constitutions  the  gov- 
ernment is  founded,  in  fact,  on  the  assent  of  the  whole  people, 
when  many  of  them  have  not  been  permitted  to  express  any  opin- 
ion, and  many  have  expressed  a  decided  dissent  ?  In  what  man- 
ner are  we  to  prove  that  every  citizen  of  the  State  has  contracted 
with  all  the  other  citizens  that  such  constitution  shall  be  a  bind- 
ing compact  between  them,  with  mutual  obligations  to  observe  and 
keep  it,  against  such  positive  dissent  ?  If  it  be  said  that  by  enter- 
ing into  the  society  an  assent  is  necessarily  implied  to  submit  to 
the  majority,  how  is  it  proved  that  a  majority  of  all  the  people  of 
all  ages  and  sexes  were  ever  asked  to  assent,  or  did  assent,  to  such 
a  proposition  ?  And  as  to  persons  subsequently  born,  and  sub- 
jected by  birth  to  such  society,  where  is  the  record  of  such  assent 
in  point  of  law  or  fact  ?  ^ 

§  329.  In  respect  to  the  American  Revolution  itself,  it  is  noto- 
rious that  it  was  brought  about  against  the  wishes  and  resistance 
of  a  formidable  minority  of  the  people,  and  that  the  Declaration 
of  Independence  never  had  the  universal  assent  of  the  inhabitants 
of  the  country.  So  that  this  great  and  glorious  change  in  the 
organization  of  our  government  owes  its  whole  authority  to  the 
efforts  of  a  triumphant  majority.  And  the  dissent  on  the  part  of 
the  minority  was  deemed  in  many  cases  a  crime,  carrying  along 

1  See  1  Hume's  Essays,  Essay  12. 


230  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  IH. 

with  it  the  penalty  of  confiscation,  forfeiture,  and  personal  and 
even  capital  punishment ;  and  in  its  mildest  form  was  deemed  an 
unwarrantable  outrage  upon  the  public  rights,  and  a  total  disregard 
of  the  duties  of  patriotism. 

§  330.   The  truth  is,  that  the  majority  of  every  organized  society 
have  always  claimed  and  exercised  the  right  to  govern  the  whole 
of  that  society,  in  the  manner  pointed  out  by  the  fundamental  laws 
which  from  time  to  time  have  existed  in  such  society.^     Every 
revolution,  at  least  when  not  produced  by  positive  force,  has  been 
founded  upon  the  authority  of  such  majority.      And  the   right 
results  from  the  very  necessities  of  our  nature  ;  for  universal  con- 
sent can  never  be  practically  required  or  obtained.     The  minority 
are  bound,  whether  they  have  assented  or  not ;  for  the  plain  reason 
that  opposite  wills  in  the  same  society,  on  the  same  subjects,  can- 
not prevail  at  the  same  time ;  and,  as  society  is  instituted  for  the 
general  safety  and  happiness,  in  a  conflict  of  opinion  the  majority 
must  have  a  right  to  accomplish  that  object  by  the  means  which  they 
deem  adequate  for  the  end.    The  majority  may,  indeed,  decide  how 
far  they  will  respect  the  rights  or  claims  of  the  minority  ;  and  how 
far  they  will,  from  policy  or  principle,  insist  upon  or  absolve  them 
from  obedience.     But  this  is  a  matter  on  which  they  decide  for 
themselves,  according  to  their  own  notions  of  justice  or  conven- 
ience.    In  a  general  sense  the  will  of  the  majority  of  the  people 
is  absolute  and  sovereign,  limited  only  by  their  means  and  power 
to  make  their  will  effectual. ^     The  Declaration  of  Independence 
(which,  it  is  historically  known,  was  not  the  act  of  the  whole 
American  people)  puts  the  doctrine  on  its  true  grounds.    Men  are 
endowed,  it  declares,  with  certain  unalienable  rights,  and  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness.     To  secure 
these  rights  governments  are  instituted  among  men,  deriving  their 
just  powers  from  the  consent  of  the  governed.      Whenever  any 
form  of  government  becomes  destructive  of  these  ends,  it  is  the 
right  of  the  people  (plainly  intending  the  majority  of  the  people) 
to  alter  or  to  abolish  it,  and  to  institute  a  new  government,  laying 

1  1  Tucker's  Black.  Comm.  App.  168 ;  Id.  172, 173  ;  Burke's  Appeal  from  the  New  to 
the  Old  Whigs ;  Grotius,  B.  2,  ch.  5,  §  17. 

2  Mr.  Dane,  in  his  Appendix  to  the  ninth  volume  of  his  Abridgment,  has  examined 
this  subject  very  much  at  large.  See,  especially,  pages  37  to  43.  Mr.  Locke,  the  most 
strenuous  asserter  of  liberty  and  of  the  original  compact  of  society,  contends  resolutely 
for  this  power  of  the  majority  to  bind  the  minority,  as  a  necessary  condition  in  the 
original  formation  of  society.    Locke  on  Government,  B.  2,  ch.  8,  from  §  95  to  §  100. 


CH.  III.]  NATURE   OF  THE   CONSTITUTION.  231 

its  foundation  on  such  principles,  and  organizing  its  powers  in 
such  forms,  as  to  them  shall  seem  most  likely  to  effect  their  safety 
and  happiness. 

§  331.  But  whatever  may  be  the  true  doctrine  as  to  the  nature 
of  the  original  compact  of  society,  or  of  the  subsequent  institution 
and  organization  of  governments  consequent  thereon,  it  is  a  very 
unjustifiable  course  of  reasoning  to  connect  with  the  theory  all  the 
ordinary  doctrines  applicable  to  municipal  contracts  between  indi- 
viduals, or  to  public  conventions  between  nations.  We  have 
already  seen  that  the  theory  itself  is  subject  to  many  qualifica- 
tions ;  but  whether  true  or  not,  it  is  impossible,  with  a  just  regard 
to  the  objects  and  interests  of  society,  or  the  nature  of  compacts 
of  government,  to  subject  them  to  the  same  constructions  and 
conditions  as  belong  to  positive  obligations  created  between  inde- 
pendent parties  contemplating  a  distinct  and  personal  responsi- 
bility. One  of  the  first  elementary  principles  of  all  contracts  is, 
to  interpret  them  according  to  the  intentions  and  objects  of  the 
parties.  They  are  not  to  be  so  construed  as  to  subvert  the  obvi- 
ous objects  for  which  they  were  made,  or  to  lead  to  results  wholly 
beside  the  apparent  intentions  of  those  who  framed  them.^ 

§  332.  Admitting,  therefore,  for  the  sake  of  argument,  that  the 
institution  of  a  government  is  to  be  deemed,  in  the  restricted  sense 
already  suggested,  an  original  compact  or  contract  between  each 
citizen  and  the  whole  community,  is  it  to  be  construed  as  a  contin- 
uing contract  after  its  adoption,  so  as  to  involve  the  notion  of  there 
being  still  distinct  and  independent  parties  to  the  instrument  capa- 
ble and  entitled,  as  matter  of  right,  to  judge  and  act  upon  its 
construction  according  to  their  own  views  of  its  import  and  obli- 
gations ?  to  resist  the  enforcement  of  the  powers  delegated  to  the 
government  at  the  good  pleasure  of  each  ?  to  dissolve  all  connec- 

1  It  was  the  consideration  of  the  consequences  deducible  from  the  theory  of  an  origi- 
nal subsisting  compact  between  the  people,  upon  the  first  formation  of  civil  societies 
and  governments,  that  induced  Dr.  Paley  to  reject  it.  He  supposed  that,  if  admitted, 
its  fundamental  principles  were  still  disputable  and  uncertain ;  that,  if  founded  on  com- 
pact, the  form  of  government,  however  absurd  or  inconvenient,  was  still  obligatory ; 
and  that  every  violation  of  the  compact  involved  a  right  of  rebellion  and  a  dissolution 
of  the  government.  Paley's  Moral  Philosophy,  B.  6,  ch.  3.  Mr.  Wilson  (afterwards 
Mr.  Justice  Wilson)  urged  the  same  objection  very  forcibly  in  the  Pennsylvania  Con- 
vention for  adopting  the  Constitution.  3  Elliot's  Debates,  286,  287,  288.  Mr.  Hume 
considers  the  true  reason  for  obedience  to  government  to  be,  not  a  contract  or  promise 
to  obey,  but  the  fact  that  society  could  not  otherwise  subsist.  1  Hume's  Essays, 
Essay  12. 


232  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  IH. 

tion  with  it,  whenever  there  is  a  supposed  breach  of  it  on  the  other 
side  ?  ^  These  are  momentous  questions,  and  go  to  the  very  founda- 
tion of  every  government  founded  on  the  voluntary  choice  of  the 
people  ;  and  they  should  be  seriously  investigated  before  we  admit 
the  conclusions  which  may  be  drawn  from  one  aspect  of  them.^ 

§333.  Take,  for  instance,  the  constitution  of  Massachusetts, 
which  in  its  preamble  contains  the  declaration  already  quoted,  that 
government  "  is  a  social  compact,  by  which  the  whole  people  cov- 
enants with  each  citizen,  and  each  citizen  with  the  whole  govern- 
ment "  ;  are  we  to  construe  that  compact,  after  the  adoption  of  the 
constitution,  as  still  a  contract  in  which  each  citizen  is  still  a  dis- 
tinct party,  entitled  to  his  remedy  for  any  breach  of  its  obligations, 
and  authorized  to  separate  himself  from  the  whole  society,  and  to 
throw  off  all  allegiance  whenever  he  supposes  that  any  of  the 
fundamental  principles  of  that  compact  are  infringed  or  miscon- 
strued ?  Did  the  people  intend  that  it  should  be  thus  in  the 
power  of  any  individual  to  dissolve  the  whole  government  at  his 
pleasure,  or  to  absolve  himself  from  all  obligations  and  duties 
thereto  at  his  choice,  or  upon  his  own  interpretation  of  the  in- 
strument ?  If  such  a  power  exists,  where  is  the  permanence  or 
security  of  the  government  ?  In  what  manner  are  the  rights  and 
property  of  the  citizens  to  be  maintained  or  enforced  ?  Where 
are  the  duties  of  allegiance  or  obedience  ?  May  one  withdraw  his 
consent  to-day,  and  reassert  it  to-morrow  ?  May  one  claim  the 
protection  and  assistance  of  the  laws  and  institutions  to-day,  and 
to-morrow  repudiate  them  ?  May  one  declare  war  against  all  the 
others  for  a  supposed  infringement  of  the  Constitution  ?  If  he 
may,  then  each  one  has  tlie  same  right  in  relation  to  all  others ; 
and  anarchy  and  confusion,  and  not  order  and  good  government 
and  obedience,  are  the  ingredients  which  are  mainly  at  work  in  all 

1  9  Dane's  Abridg.  ch.  187,  art.  20,  §  13,  p.  589. 

2  Mr.  "Woodeson  (Elements  of  Jurisp.  p.  22)  sajs,  "However  the  historical  fact  may 
be  of  a  social  compact,  government  ought  to  be  and  is  generally  considered  as  founded 
on  consent,  tacit  or  express,  or  a  real  or  quasi  compact.  This  theory  is  a  material 
basis  of  political  rights ;  and  as  a  theoretical  point  is  not  too  difficult  to  be  maintained, 
&c.,  &c.  Not  that  such  consent  is  subsequently  revocable  at  the  will,  even  of  all  the  sub- 
jects of  the  state,  for  that  would  be  making  a  part  of  the  community  equal  in  power  to 
the  whole  originally,  and  superior  to  the  rulers  thereof  after  their  establishment." 
However  questionable  this  latter  position  may  be,  (and  it  is  open  to  many  objections ; 
see  1  Wilson's  Lectures,  417,  418,  419,  420,)  it  is  certain  that  a  right  of  the  minority 
to  withdraw  from  the  government,  and  to  overthrow  its  powers,  has  no  foundation  in 
any  just  reasoning. 


CH.  III.]-  NATURE  OF  THE  CONSTITUTION.  233 

free  institutions  founded  upon  the  will  and  choice  and  compact  of 
the  people.  The  existence  of  the  government  and  its  peace  and  its 
vital  interests  will,  under  such  circumstances,  be  at  the  mercy  and 
even  at  the  caprice  of  a  single  individual.  It  would  not  only  be 
vain,  but  unjust  to  punish  him  for  disturbing  society,  when  it  is 
but  by  a  just  exercise  of  the  original  rights  reserved  to  him  by  the 
compact.  The  maxim  that  in  every  government  the  will  of  the 
majority  shall  and  ought,  to  govern  the  rest,  would  be  thus  sub- 
verted ;  and  society  would,  in  effect,  be  reduced  to  its  original 
elements.  The  association  would  be  temporary  and  fugitive,  like 
those  voluntary  meetings  among  barbarous  and  savage  communi- 
ties, where  each  acts  for  himself,  and  submits  only  while  it  is  his 
pleasure. 

§  334.  It  can  readily  be  understood  in  what  manner  contracts 
entered  into  by  private  persons  are  to  be  construed  and  enforced 
under  the  regular  operations  of  an  organized  government.  Under 
such  circumstances,  if  a  breach  is  insisted  on  by  either  side,  the 
proper  redress  is  administered  by  the  sovereign  power,  through 
the  medium  of  its  delegated  functionaries,  and  usually  by  the  judi- 
cial department,  according  to  the  principles  established  by  the 
laws  which  compose  the  jurisprudence  of  that  country.  In  such  a 
case  no  person  supposes  that  each  party  is  at  liberty  to  insist  abso- 
lutely and  positively  upon  his  own  construction,  and  to  redress 
himself  accordingly  by  force  or  by  fraud.  He  is  compellable  to 
submit  the  decision  to  others,  not  chosen  by  himself,  but  appointed 
by  the  government,  to  secure  the  rights  and  redress  tlie  wrongs 
of  the  whole  community.  In  such  cases  the  doctrine  prevails, 
inter  leges  silent  arma.  But  the  fe verse  maxim  would  prevail  upon 
the  doctrine  of  which  we  are  speaking,  iyiter  arma  silent  leges.  It 
is  plain  that  such  a  resort  is  not  contemplated  by  any  of  our  forms 
of  government,  by  a  suit  of  one  citizen  against  the  whole  for  a 
redress  of  his  grievances,  or  for  a  specific  performance  of  the  obli- 
gations of  the  constitution.  He  may  have,  and  doubtless  in  our 
forms  of  administering  justice  has,  a  complete  protection  of  his 
rights  secured  by  the  constitution,  when  they  are  invaded  by  any 
other  citizen.  But  that  is  in  a  suit  by  one  citizen  against  another, 
and  not  against  the  body  politic,  upon  the  notion  of  contract. 

§  335.  It  is  easy,  also,  to  understand  how  compacts  between 
independent  nations  are  to  be  construed,  and  violations  of  them 
redressed.    Nations,  in  their  sovereign  character,  are  all  upon  an 


234  CONSTITUTION  OF  THE  UNITED   STATES.  [BOOK  III. 

equality,  and  do  not  acknowledge  any  superior  by  whose  decrees 
they  are  bound,  or  to  whose  opinions  they  are  obedient.  When- 
ever, therefore,  any  differences  arise  between  them  as  to  the  inter- 
pretation of  a  treaty,  or  of  the  breach  of  its  terms,  there  is  no 
common  arbiter  whom  they  are  bound  to  acknowledge,  having 
authority  to  decide  them.  There  are  but  three  modes  in  which 
these  differences  can  be  adjusted :  first,  by  new  negotiations  em- 
bracing and  settling  the  matters  in  dispute ;  secondly,  by  referring 
the  same  to  some  common  arbiter,  pro  hao  vice,  whom  they  invest 
with  such  power ;  or,  thirdly,  by  a  resort  to  arms,  which  is  the 
ultima  ratio  regum,  or  the  last  appeal  between  sovereigns. 

§  336.  It  seems  equally  plain,  that  in  our  forms  of  government 
the  constitution  cannot  contemplate  either  of  these  modes  of  in- 
terpretation or  redress.  Each  citizen  is  not  supposed  to  enter  into 
the  compact,  as  a  sovereign  with  all  the  others  as  sovereign, 
retaining  an  independent  and  coequal  authority  to  judge  and 
decide  for  himself.  He  has  no  authority  reserved  to  institute  new 
negotiations,  or  to  suspend  the  operations  of  the  constitution,  or 
to  compel  the  reference  to  a  common  arbiter,  or  to  declare  war 
against  the  community  to  which  he  belongs. 

§  337.  No  such  claim  has  ever  (at  least  to  our  knowledge)  been 
asserted  by  any  jurist  or  statesman  in  respect  to  any  of  our  State 
constitutions.  The  understanding  is  general,  if  not  universal, 
that,  having  been  adopted  by  the  majority  of  the  people,  the  con- 
stitution of  the  State  binds  the  whole  community  proprio  vigors  ; 
and  is  unalterable,  unless  by  the  consent  of  the  majority  of  the 
people,  or  at  least  of  the  qualified  voters  of  the  State,  in  the  man- 
ner prescribed  by  the  constitution,  or  otherwise  provided  for  by 
the  majority.  No  right  exists,  or  is  supposed  to  exist,  on  the  part 
of  any  town  or  county,  or  other  organized  body  within  the  State, 
short  of  a  majority  of  the  whole  people  of  the  State,  to  alter,  sus- 
pend, resist,  or  dissolve  the  operations  of  that  constitution,  or  to 
withdraw  themselves  from  its  jurisdiction.  Much  less  is  the  com- 
pact supposed  liable  to  interruption  or  suspension  or  dissolution 
at  the  will  of  any  private  citizen  upon  his  own  notion  of  its  obli- 
gations, or  of  any  infringements  of  them  by  the  constituted  author- 
ities.^ The  only  redress  for  any  such  infringements,  and  the  only 
guaranty  of  individual  rights  and  property,  are  understood  to 
consist  in  the  peaceable  appeal  to  the  proper  tribunals  constituted 

1  Dane's  App.  §  14,  p.  25,  26. 


CH.  m.]  NATURE  OF  THE  CONSTITUTION.  235 

by  the  government  for  such  purposes  ;  or  if  these  should  fail,  by 
the  ultimate  appeal  to  the  good  sense  and  integrity  and  justice  of 
the  majority  of  the  people.  And  this,  according  to  Mr.  Locke,  is 
the  true  sense  of  the  original  compact,  by  which  every  individual 
has  surrendered  to  the  majority  of  the  society  the  right  permanently 
to  control  and  direct  the  operations  of  government  therein. ^ 

§  338.  The  true  view  to  be  taken  of  our  State  constitutions  is, 
that  they  are  forms  of  government  ordained  and  established  by 
the  people  in  their  original  sovereign  capacity  to  promote  their  own 
happiness,  and  permanently  to  secure  their  rights,  property,  inde- 
pendence, and  common  welfare.  The  language  of  nearly  all  these 
State  constitutions  is,  that  the  people  do  ordain  and  establish  this 
constitution  ;  and  where  these  terms  are  not  expressly  used,  they 
are  necessarily  implied  in  the  very  substance  of  the  frame  of  gov- 
ernment.2  They  may  be  deemed  compacts,  (though  not  generally 
declared  so  on  their  face,)  in  the  sense  of  their  being  founded  o» 
the  voluntary  consent  or  agreement  of  a  majority  of  the  qualified 
voters  of  the  State.  But  they  are  not  treated  as  contracts  and 
conventions  between  independent  individuals  and  communities 
having  no  common  umpire.^  The  language  of  these  instruments 
is  not  the  usual  or  appropriate  language  for  mere  matters  resting 
and  forever  to  rest  in  contract.  In  general  the  import  is,  that  the 
people  "  ordain  and  establish,"  that  is,  in  their  sovereign  capacity, 
meet  and  declare  what  shall  be  the  fundamental  Law  for  the  gov- 
ernment of  themselves  and  their  posterity.  Even  in  the  constitu- 
tion of  Massachusetts,  which,  more  than  any  other,  wears  the  air 
of  contract,  the  compact  is  declared  to  be  a  mere  "  constitution  of 
civil  government,"  and  the  people  "  do  agree  on,  ordain,  and 
establish  the  following  declaration  of  rights  and  frame  of  govern- 
ment as  the  constitution  of  government."  In  this  very  bill  of 
rights  the  people  are  declared  "  to  have  the  sole  and  exclusive 
right  of  governing  themselves,  as  a  free,  sovereign,  and  indepen- 
dent State  "  ;  and  that  "  they  have  an  incontestable,  unalienable, 

1  Locke  on  Government,  B.  2,  ch.  8,  §  95  to  100  ;  ch.  19,  §  212,  220,  226,  240,  243  ;  1 
Wilson's  Law  Lectures,  310,  384,  417,  418.  Mr.  Dane  (App.  p.  32)  says,  that  if  there 
be  any  compact,  it  is  a  compact  to  make  a  constitution  ;  and  that  done,  the  agreement 
is  at  an  end.  It  then  becomes  an  executed  contract,  and,  according  to  the  intent  of  the 
parties,  a  fundamental  law. 

2  Dane's  App.J  16, 17,  p.  29,  30 ;  Id.  §  14,  p.  25,  26. 

*  Heineccius,  Elemen.  Juris.  Natur.  L.  2,  ch.  6,  §  109  to  115 ;  (2  Turnbull,  Heinecc. 
p.  95 ;)  &c. 


236  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  IH. 

and  indefeasible  right  to  institute  government,  and  to  reform,  alter, 
or  totally  change  the  same,  when  their  protection,  safety,  pros- 
perity, and  happiness  require  it."  It  is,  and  accordingly  has 
always  been,  treated  as  a  fundamental  law,  and  not  as  a  mere 
contract  of  government,  during  the  good  pleasure  of  all  the  per- 
sons who  were  originally  bound  by  it  or  assented  to  it.^ 

§  339.  A  constitution  is  in  fact  a  fundamental  law  or  basis  of 
government,  and  falls  strictly  within  the  definition  of  law  as  given 
by  Mr.  Justice  Blackstone.  It  is  a  rule  of  action  prescribed  by 
the  supreme  power  in  a  state,  regulating  the  rights  and  duties  of 
the  whole  community.  It  is  a  rule,  as  contradistinguished  from  a 
temporary  or  sudden  order ;  permanent,  uniform,  and  universal. 
It  is  also  called  a  rule,  to  distinguish  it  from  a  compact  or  agree- 
ment ;  for  a  compact  (he  adds)  is  a  promise  proceeding  from  us, 
law  is  a  command  directed  to  us.  The  language  of  a  compact  is, 
I  will  or  will  not  do  this  ;  that  of  a  law  is.  Thou  shalt  or  shalt  not 
do  it.2  "  In  compacts  we  ourselves  determine  and  promise  what 
shall  be  done  before  we  are  obliged  to  do  it.  In  laws  we  are 
obliged  to  act  without  ourselves  determining  or  promising  anything 
at  all."  ^  It  is  a  rule  prescribed  ;  that  is,  it  is  laid  down,  promul- 
gated, and  established.  It  is  prescribed  by  the  supreme  power  in 
a  state,  that  is,  among  us,  by  the  people,  or  a  majority  of  them  in 
their  original  sovereign  capacity.  Like  the  ordinary  municipal 
laws,  it  may  be  founded  upon  our  consent  or  that  of  our  represen- 
tatives ;  but  it  derives  its  ultimate  obligatory  force  as  a  law,  and 
not  as  a  compact. 

§  340.  And  it  is  in  this  light  that  the  language  of  the  Constitu- 
tion of  the  United  States  manifestly  contemplates  it ;  for  it  declares 
(article  6th)  that  this  Constitution  and  the  laws,  &c.,  and  treaties 
made  under  the  authority  of  the  United  States,  "  shall  be  the 
supreme  law  of  the  land."     This  (as  has  been  justly  observed  by 

1  Mr,  Justice  Chase,  in  Ware  v.  Hyltm,  3  Dall.  R.  199,  declares  the  constitution  of  a 
State  to  be  the  fundamental  law  of  the  State.  Mr.  Dane  has  with  great  force  said,  that 
a  constitution  is  a  thing  constituted,  an  instrument  ordained  and  established.  If  a 
committee  frame  a  constitution  for  a  State,  and  the  people  thereof  meet  in  their  several 
counties  and  ratify  it,  it  is  a  constitution  ordained  and  established,  and  not  a  compact, 
or  contract  among  the  counties.  So,  if  they  meet  in  several  towns  and  ratify  it,  it  is  a 
compact  among  them.  A  compact  among  States  is  a  confederation,  and  is  always  so 
named,  (as  was  the  old  confederation,)  and  never  a  constitution.  9  Dane's  Abridgment, 
ch.  187,  art.  20,  §  15,  p.  590. 

2  1  Black.  Comm.  38,  44,  45.     See  also  Burlamaqai,  Part  1,  ch.  8,  p.  48,  §  3,  4,  5. 
8  1  Black.  Comm.  45. 


CH.  ni.]  NATURE  OF  THE  CONSTITUTION.  237 

the  Federalist)  results  from  the  very  nature  of  political  institu- 
tions. A  law,  by  the  very  meaning  of  the  terms,  includes  suprem- 
acy.^ If  individuals  enter  into  a  state  of  society,  the  laws  of 
that  society  must  be  the  supreme  regulator  of  their  conduct.  If  a 
number  of  political  societies  enter  into  a  larger  political  society, 
the  laws  which  the  latter  may  enact,  pursuant  to  the  powers  in- 
trusted to  it  by  its  constitution,  must  be  supreme  over  those  socie- 
ties and  the  individuals  of  whom  they  are  composed.  It  would 
otherwise  be  a  mere  treaty,  dependent  on  the  good  faith  of  the 
parties,  and  not  a  government,  which  is  only  another  word  for  polit- 
ical power  and  supremacy .^  A  State  constitution  is  then,  in  a  just 
and  appropriate  sense,  not  only  a  law,  but  a  supreme  laiv,  for  the 
government  of  the  whole  people,  within  the  range  of  the  powers 
actually  contemplated  and  the  right  secured  by  it.  It  would, 
indeed,  be  an  extraordinary  use  of  language  to  consider  a  declara- 
tion of  rights  in  a  constitution,  and  especially  of  rights  which  it 
proclaims  to  be  "unalienable  and  indefeasible,"  to  be  a  matter  of 
contract,  and  resting  on  such  a  basis,  rather  than  a  solemn  recog- 
nition and  admission  of  those  rights,  arising  from  the  law  of  nature 
and  the  gift  of  Providence,  and  incapable  of  being  transferred  or 
surrendered.^ 

1  The  Federalist,  No.  33.     See  also,  No.  15.  ^  The  Federalist,  No.  33. 

^  Mr.  Adams,  in  his  oration  on  the  4th  of  July,  1831,  uses  the  following  language  : 
"  In  the  constitution  of  this  commonwealth  [Massachusetts]  it  is  declared  that  the  body- 
politic  is  formed  by  a  voluntary  association  of  individuals ;  that  it  is  a  social  com- 
pact, &c.  The  body  politic  of  the  United  States  was  formed  by  a  voluntary  association 
of  the  people  of  the  united  colonies.  The  Declaration  of  Independence  was  a  social 
compact,  by  which  the  whole  people  covenanted  with  each  citizen  of  the  united  colonies, 
and  each  citizen  with  the  whole  people,  that  the  united  colonies  were,  and  of  right 
ought  to  be,  free  and  independent  States.  To  this  compact,  union  was  as  vital  as  free- 
dom and  independence.  From  the  hour  of  that  independence  no  one  of  the  States 
whose  people  were  parties  to  it  could,  without  a  violation  of  that  primitive  compact, 
secede  or  separate  from  the  rest.  Each  was  pledged  to  all ;  and  all  were  pledged  to 
each  other  by  a  concert  of  soul,  without  limitation  of  time,  in  the  presence  of  Almighty 
God,  and  proclaimed  to  all  mankind.  The  colonies  were  not  declared  to  be  sovereign 
States.  The  term  *  sovereign '  is  not  even  to  be  found  in  the  Declaration."  Again, 
"  Our  Declaration  of  Independence,  our  Confederation,  our  Constitution  of  the  United 
States,  and  all  our  State  constitutions,  without  a  single  exception,  have  been  voluntary 
compacts,  deriving  all  their  authority  from  the  free  consent  of  the  parties  to  them." 
And  he  proceeds  to  state  that  the  modern  doctrine  of  nullification  of  the  laws  of  the 
Union,  by  a  single  State,  is  a  solecism  of  language,  and  imports  self-contradiction,  and 
goes  to  the  destruction  of  the  government  and  the  Union.  It  is  plain,  from  the  whole 
reasoning  of  Mr.  Adams,  that  when  ho  speaks  of  the  Constitution  as  a  compact,  he 
means  no  more  than  that  it  is  a  voluntary  and  solemn  consent  of  the  people  to  adopt  it, 
as  a  form  of  government ;  and  not  a  treaty  obligation  to  be  abrogated  at  will  by  a 
single  State. 


238  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  III. 

§  341.  The  Resolution  of  the  convention  of  the  Peers  and  Com- 
mons in  1688,  which  deprived  King  James  the  Second  of  the 
throne  of  England,  may  perhaps  be  thought  by  some  persons  to 
justify  the  doctrine  of  an  original  compact  of  government  in  the 
sense  of  those  who  deem  the  Constitution  of  the  United  States  a 
treaty  or  league  between  the  States,  and  resting  merely  in  con- 
tract. It  is  in  the  following  words  :  "  Resolved,  that  King  James 
the  Second,  having  endeavored  to  subvert  the  Constitution  of  the 
kingdom  hy  breaking  the  original  contract  between  king  and  people  ; 
and  by  the  advice  of  Jesuits  and  other  wicked  persons  having  vio- 
lated the  fundamental  laws,  and  withdrawn  himself  out  of  the 
kingdom,  hath  abdicated  the  government,  and  that  the  throne  is 
thereby  become  vacant."  ^ 

§  342.  It  is  well  known  that  there  was  a  most  serious  difference 
of  opinion  between  the  House  of  Peers  and  the  House  of  Com- 
mons upon  the  language  of  this  resolution,  and  especially  upon 
that  part  which  declared  tlio  abdication  and  vacancy  of  the  throne. 
In  consequence  of  which  a  free  conference  was  held  by  commit- 
tees of  both  houses,  in  which  the  most  animated  debates  took  place 
between  some  of  the  most  distinguished  men  in  the  kingdom.  But 
the  Commons  adhering  to  their  vote,  the  Lords  finally  acceded  to 
it.  The  whole  debate  is  preserved,  and  the  reasoning  on  each  side 
is  given  at  large  .^  In  the  course  of  the  debate  notice  was  fre- 
quently taken  of  the  expression  of  breaking  the  original  contract 
between  king  and  people.  The  Bishop  of  Ely  said,  "  I  may  say, 
that  this  breaking  the  original  contract  is  a  language  that  hath  not 
been  long  used  in  this  place,  nor  known  in  any  of  our  law-books 
or  public  records.  It  is  sprung  up,  but  as  taken  from  some  late 
authors,  and  those  none  of  the  best  received  ;  and  the  very  phrase 
might  bear  a  great  debate,  if  that  were  now  to  be  spoken  to."  — 
"  The  making  of  new  laws  being  as  much  a  part  of  the  original 
compact  as  the  observing  old  ones,  or  anything  else,  we  are  obliged 
to  pursue  those  laws  till  altered  by  the  legislative  power,  which, 
singly  or  jointly,  without  the  royal  assent,  I  suppose  we  do  not 
pretend  to."  —  "We  must  think  sure  that  meant  of  the  compact 
that  was  made  at  first  time,  when  the  government  was  first  insti- 
tuted, and  the  conditions,  that  each  part  of  the  government  should 
observe  on  their  part ;  of  which  this  was  most  fundamental,  that 

1  1  Black.  Comm.  211,  222,  232. 

2  Parliamentary  Debates,  1688,  edit.  1742,  p.  203  et  seq. 


CH.  III.]  NATURE   OF   THE   CONSTITUTION.  239 

king,  lords,  and  commons  in  Parliament  assembled  shall  have  the 
power  of  making  new  laws  and  altering  of  old  ones."  ^  Sir 
George  Treby  said,  "  We  are  gone  too  far,  when  we  offer  to  inquire 
into  the  original  contract,  whether  any  such  thing  is  known  or  un- 
derstood in  our  law  or  Constitution,  and  whether  it  be  new  lan- 
guage among  us."  "  First,  it  is  a  phrase  used  by  the  learned  Mr. 
Hooker  in  his  book  of  Ecclesiastical  Polity,  whom  I  mention  as  a 
valuable  authority,"  &c.  "  But  I  have  yet  a  greater  authority  than 
this  to  influence  this  matter,  and  that  is  your  lordships'  own,  who 
have  agreed  to  all  the  vote,  but  this  word,  abdicated^  and  the 
vacancy  of  the  throne."  He  then  supposes  the  king  to  say,  "  The 
title  of  kingship  I  hold  by  original  contract,  and  the  fundamental 
constitutions  of  the  government,  and  my  succession  to  and  pos- 
session of  the  crown  on  these  terms  is  a  part  of  that  contract. 
This  part  of  the  contract  I  am  weary  of,"  Slq?  The  Earl  of  Not- 
tingham said, "  I  know  no  laws,  as  laws,  but  what  are  fundamental 
constitutions,  as  the  laws  are  necessary  so  far  to  support  the  foun- 
dation." 3  Sir  Thomas  Lee  said,  "  The  contract  was  to  settle  the 
Constitution  as  to  the  legislature  ;  and  it  is  true  that  it  is  a  part 
of  the  contract,  the  making  of  laws,  and  that  those  laws  should 
oblige  all  sides  when  made.  But  yet  not  so  as  to  exclude  this 
original  constitution  in  all  governments  that  commence  by 
compact,  that  there  should  be  a  power  in  the  states  to  make 
provision  in  all  times,  and  upon  all  occasions  for  extraordinary 
cases  of  necessity,  such  as  ours  now  is."*  Sir  George  Treby 
again  said,  "  The  laws  made  are  certainly  part  of  the  original  con- 
tract, and  by  the  laws  made,  <fec.,  we  are  tied  up  to  keep  in  the 
hereditary  line,"  &c.^  Mr.  Sergeant  Holt  (afterwards  Lord  Chief 
Justice)  said,  "  The  government  and  magistracy  are  all  under  a 
trust,  and  any  acting  contrary  to  that  trust  is  a  renouncing  of  the 
trust,  though  it  be  not  a  renouncing  by  formal  deed.  For  it  is  a 
plain  declaration  by  act  and  deed,  though  not  in  writing,  that  he  who 
hath  the  trust,  acting  contrary,  is  a  disclaimer  of  the  trust."  ^  Mr. 
Sergeant  Maynard  said,  "  The  Constitution,  notwithstanding  the 
vacancy,  is  the  same.  The  laws,  that  are  the  foundations  and 
rules  of  that  Constitution,  are  the  same.  But  if  there  be  in  any 
instance  a  breach  of  that  Constitution,  that  will  be  an  abdication, 

1  Parliamentary  Debates,  1688,  edit.  1742,  p.  217,  218. 

2  Id.  p.  221,  223,  224.  8  id.  p.  225,  226. 
*  Id.  p.  246.                         5  Id.  p.  249.                                 6  id.  p.  213. 


240  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  IIL 

and  that  abdication  will  confer  a  vacancy."  ^  Lord  Nottingham 
said,  "  Acting  against  a  man's  trust  (says  Mr.  Sergeant  Holt)  is 
a  renunciation  of  that  trust.  I  agree  it  is  a  violation  of  his  trust 
to  act  contrary  to  it.  And  he  is  accountable  for  that  violation  to 
answer  what  the  trust  suffers  out  of  his  own  estate.  But  I  deny 
it  to  be  presently  a  renunciation  of  the  trust,  and  that  such  a  one 
is  no  longer  a  trustee."  '-^ 

§  343.  Now  it  is  apparent  from  the  whole  reasoning  of  all  the 
parties,  that  they  were  not  considering  how  far  the  original  insti- 
tution of  government  was  founded  in  compact,  that  is,  how  far 
society  itself  was  founded  upon  a  social  compact.  It  was  not  a 
question  brought  into  discussion,  whether  each  of  the  people  con- 
tracted with  the  whole  people,  or  each  department  of  the  govern- 
ment with  all  others,  or  each  organized  community  within  the 
realm  with  all  others,  that  there  should  be  a  frame  of  government 
which  should  form  a  treaty  between  them,  of  which  each  was  to 
judge  for  himself,  and  from  which  each  was  at  liberty  to  withdraw 
at  his  pleasure,  whenever  he  or  they  supposed  it  broken.  All  of 
the  speakers  on  all  sides  were  agreed  that  the  Constitution  was  not 
gone ;  that  it  remained  in  full  force,  and  obligatory  upon  the  whole 
people,  including  the  laws  made  under  it,  notwithstanding  the  vio- 
lations by  the  king. 

§  344.  The  real  point  before  them  was  upon  a  contract  of  a  very 
different  sort,  a  contract  by  which  the  king  upon  taking  upon  him- 
self the  royal  office  undertook,  and  bound  himself  to  the  whole  people 
to  govern  them  according  to  the  laws  and  constitution  of  the  gov- 
ernment. It  was,  then,  deemed  a  contract  on  his  part  singly  with 
the  whole  people,  they  constituting  an  aggregate  body  on  the  other 
part.  It  was  a  contract  or  pledge  by  the  executive,  called  upon  to 
assume  an  hereditary,  kingly  authority,  to  govern  according  to  the 
rules  prescribed  by  the  form  of  government  already  instituted  by 
the  people.  The  constitution  of  government  and  its  limitations  of 
authority  were  supposed  to  be  fixed  (no  matter  whether  in  fiction 
only  or  in  fact)  antecedently  to  his  being  chosen  to  the  kingly 
office.  We  can  readily  understand  how  such  a  contract  may  be 
formed  and  continue  even  to  exist.  It  was  actually  made  with 
William  the  Third,  a  few  days  afterwards ;  it  has  been  recently 
made  in  France  by  King  Louis  Philippe,  upon  the  expulsion  of  the 
old  line  of  the  Bourbons.    But  in  both  these  cases  the  constitution  of 

1  Parliamentary  Debates,  1688,  edit.  1742,  p.  213,  214.  ^  i(j.  p.  220. 


CH.  III.]  NATURE  OF  THE  CONSTITUTION.  241 

government  was  supposed  to  exist  independent  of,  and  antecedent 
to,  this  contract.  There  was  a  mere  call  of  a  particular  party  to 
the  throne,  already  established  in  the  government,  upon  certain 
fundamental  conditions,  which  if  violated  by  the  incumbent  he 
broke  his  contract,  and  forfeited  his  right  to  the  crown.  But  the 
constitution  of  government  remained,  and  the  only  point  left  was 
to  supply  the  vacancy  by  a  new  choice. ^ 

§  345.  Even  in  this  case  a  part  of  the  people  did  not  undertake 
to  declare  the  compact  violated  or  the  throne  vacant.  The  decla- 
ration was  made  by  the  peers  in  their  own  right,  and  by  the  com- 
mons by  their  representatives,  both  being  assembled  in  convention 
expressly  to  meet  the  exigency.  "  For,"  says  Blackstone,  "  when- 
ever a  question  arises  between  the  society  at  large  and  any  magis- 
trate vested  with  powers  originally  delegated  by  that  society,  it 
must  be  decided  by  the  voice  of  that  society  itself.  There  is  not 
upon  earth  any  other  tribunal  to  resort  to."  ^ 

§  346.  This  was  precisely  the  view  entertained  by  the  great 
revolutionary  Whigs  in  1688.  They  did  not  declare  the  govern- 
ment dissolved,  because  the  king  had  violated  the  fundamental 
laws  and  obligations  of  the  Constitution.  But  they  declared  that 
those  acts  amounted  to  a  renunciation  and  abdication  of  the  gov- 
ernment by  him ;  and  that  the  throne  was  vacant,  and  must  be 
supplied  by  a  new  choice.  The  original  contract  with  him  was 
gone.  He  had  repudiated  it,  and  lost  all  rights  under  it.  But 
these  violations  did  not  dissolve  the  social  organization,  or  vary 
the  existing  Constitution  and  laws,  or  justify  any  of  the  subjects  in 
renouncing  their  own  allegiance  to  the  government ;  but  only  to 
King  James.^  In  short,  the  government  was  no  more  dissolved 
than  our  own  would  be  if  the  President  of  the  United  States  should 
violate  his  constitutional  duties,  and  upon  an  impeachment  and 
trial  should  be  removed  from  office. 

§  347.  There  is  no  analogy  whatsoever  between  that  case  and 
the  government  of  the  United  States,  or  the  social  compact,  or 
original  constitution  of  government  adopted  by  a  people.  If  there 
were  any  analogy  it  would  follow  that  every  violation  of  the  Con- 

1  1  Black.  Comm.  212,  213. 

'^  1  Black.  Comm.  211,  212. 

^  1  Black.  Comm.  212,  213.      The  same  doctrines  were  avowed  by  the  great  Whig 
leaders  of  the  House  of  Commons  on  the  trial  of  Dr.  Sacheverell,  in  1709.     Mr.  Burke, 
in  his  Appeal  from  the  New  to  the  Old  Whigs,  has  given  a  summary  of  the  reason- 
ing, and  supported  it  by  copious  extracts  from  the  trial. 
VOL.  I.  16 


242  CONSTITUTION  OF  THE  UNITED  STATES.      [BOOK  HI. 

stitution  of  the  United  States  by  any  department  of  the  govern- 
ment would  amount  to  a  renunciation  by  the  incumbent  or  incum- 
bents of  all  rights  and  powers  conferred  on  that  department  by  the 
Constitution,  ipso  facto,  leaving  a  vacancy  to  be  filled  up  by  a  new 
choice  ;  a  doctrine  that  has  never  yet  been  broached,  and  indeed 
is  utterly  unmaintainable,  unless  that  violation  is  ascertained  in 
some  mode  known  to  the  Constitution,  and  a  removal  takes  place 
accordingly.  For  otherwise  such  a  violation  by  any  functionary 
of  the  government  would  amount  to  a  renunciation  of  the  Consti- 
tution by  all  the  people  of  the  United  States,  and  thus  produce  a 
dissolution  of  the  government  eo  instanti  ;  a  doctrine  so  extrava- 
gant and  so  subversive  of  the  rights  and  liberties  of  the  people, 
and  so  utterly  at  war  with  all  principles  of  common  sense  and 
common  justice,  that  it  could  never  find  its  way  into  public  favor 
by  any  ingenuity  of  reasoning  or  any  vagaries  of  theory. 

§  348.  In  short,  it  never  entered  into  the  heads  of  the  great 
men  who  accomplished  the  glorious  Revolution  of  1688  that  a 
constitution  of  government,  however  originating,  whether  in  posi- 
tive compact  or  in  silent  assent  and  acquiescence,  after  it  was 
adopted  by  the  people,  remained  a  mere  contract  or  treaty,  open 
to  question  by  all,  and  to  be  annihilated  at  the  will  of  any  of  them 
for  any  supposed  or  real  violations  of  its  provisions.  They  sup- 
posed that  from  the  moment  it  became  a  Constitution  it  ceased  to 
be  a  compact,  and  became  a  fundamental  law  of  absolute  para- 
mount obligation,  until  changed  by  the  whole  people  in  the  manner 
prescribed  by  its  own  rules,  or  by  the  implied  resulting  power 
belonging  to  the  people  in  all  cases  of  necessity  to  provide  for 
their  own  safety.  Their  reasoning  was  addressed,  not  to  the  Con- 
stitution, but  to  the  functionaries  who  were  called  to  administer 
it.  They  deemed  that  the  Constitution  was  immortal,  and  could 
not  be  forfeited  ;  for  it  was  prescribed  by  and  for  the  benefit  of 
the  people.  But  they  deemed,  and  wisely  deemed,  that  the  magis- 
tracy is  a  trust,  a  solemn  public  trust ;  and  he  who  violates  his 
duties  forfeits  his  own  right  to  office,  but  cannot  forfeit  the  rights 
of  the  people. 

§  349.  The  subject  has  been,  thus  far,  considered  chiefly  in  ref- 
erence to  the  point  how  far  government  is  to  be  considered  as  a 
compact^  in  the  sense  of  a  contract,  as  contradistinguished  from 
an  act  of  solemn  acknowledgment  or  assent;  and  how  far  our 
State  constitutions  are  to  be  deemed  such  contracts,  rather  than 


OH.  III.]  NATURE  OF  THE  CONSTITUTION.  243 

fundamental  laws  prescribed  by  the  sovereign  power.  The  con- 
clusion to  which  we  have  arrived  is,  that  a  State  constitution  is  no 
further  to  be  deemed  a  compact  than  that  it  is  a  matter  of  consent  by 
the  people,  binding  them  to  obedience  to  its  requisitions ;  and  that 
its  proper  character  is  that  of  a  fundamental  law  prescribed  by 
the  will  of  the  majority  of  the  people  of  the  State  (who  are  enti- 
tled to  prescribe  it),  for  the  government  and  regulation  of  the 
whole  people.^  It  binds  them  as  a  supreme  rule  ordained  by  the 
sovereign  power,  and  not  merely  as  a  voluntary  contract  entered 
into  by  parties  capable  of  contracting,  and  binding  themselves  by 
such  terms  as  they  choose  to  select.^  If  this  be  a  correct  view  of 
the  subject,  it  will  enable  us  to  enter  upon  the  other  parts  of  the 
proposed  discussion  with  principles  to  guide  us  in  the  illustration 
of  the  controversy. 

§  350.  In  what  light,  then,  is  the  Constitution  of  the  United 
States  to  be  regarded  ?  Is  it  a  mere  compact,  treaty,  or  confeder- 
ation of  the  States  composing  the  Union,  or  of  the  people  thereof, 
whereby  each  of  the  several  States,  and  the  people  thereof,  have 
respectively  bound  themselves  to  each  other  ?  Or  is  it  a  form  of 
government  which,  having  been  ratified  by  a  majority  of  the  peo- 
ple in  all  the  States,  is  obligatory  upon  them,  as  the  prescribed 
rule  of  conduct  of  the  sovereign  power,  to  the  extent  of  its  pro- 
visions ? 

§  351.  Let  us  consider,  in  the  first  place,  whether  it  is  to  be 
deemed  a  compact.  By  this  we  do  not  mean  an  act  of  solemn 
assent  by  the  people  to  it,  as  a  form  of  government  (of  which 
there  is  no  room  for  doubt)  ;  but  a  contract  imposing  mutual  obli- 
gations, and  contemplating  the  permanent  subsistence  of  parties 
having  an  independent  right  to  construe,  control,  and  judge  of  its 
obligations.  If  in  this  latter  sense  it  is  to  be  deemed  a  compact, 
it  must  be  either  because  it  contains  on  its  face  stipulations  to 
that  effect,  or  because  it  is  necessarily  implied  from  the  nature 
and  objects  of  a  frame  of  government. 

1  It  is  in  this  sense  that  Mr.  Chief  Justice  Jay  is  to  be  understood  in  his  opinion  in 
Chishdm  v.  Georgia,  (2  Dall.  R.  419,)  when  he  says,  "every  State  constitution  is  a 
compact,  made  by  and  between  the  citizens  of  the  State  to  govern  themselves  in  a  cer- 
tain manner;  and  the  Constitution  of  the  United  States  is  likewise  a  compact,  made  by 
the  people  of  the  United  States  to  govern  themselves,  as  to  general  objects,  in  a  certain 
manner."  The  context  abundantly  shows  that  be  considered  it  a  fundamental  law  of 
government,  and  that  its  powers  did  not  rest  on  mere  treaty,  but  were  supreme  and  were 
to  be  construed  by  the  judicial  department;  and  that  the  States  were  bound  to  obey. 

2  Heineccius,  Elem.  Juris.  Natur.  L.  2,  ch.  6,  §  109  to  112 ;  2  Tumbull's  Heinecc. 
p.  95,  &c 


244  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

§  352.  There  is  nowhere  found  upon  the  face  of  the  Constitution 
any  clause  intimating  it  to  be  a  compact,  or  in  any  wise  providing 
for  its  interpretation  as  such.  On  the  contrary,  the  preamble 
emphatically  speaks  of  it  as  a  solemn  ordinance  and  establishment 
of  government.  The  language  is  :  "  We  the  people  of  the  United 
States  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America."  The  people  do  ordain  and  establish,  not  con- 
tract and  stipulate  with  each  other. ^  The  people  of  the  United 
States,  not  the  distinct  people  of  a  particular  State  with  the  people 
of  the  other  States.  The  people  ordain  and  establish  a  "  consti- 
tution,''^ not  a  "  confederation.^^  The  distinction  between  a  consti- 
tution and  a  confederation  is  well  known  and  understood.  The 
latter,  or  at  least  a  pure  confederation,  is  a  mere  treaty  or  league 
between  independent  states,  and  binds  no  longer  than  during  the 
good  pleasure  of  each.^  It  rests  forever  in  articles  of  compact, 
where  each  is  or  may  be  the  supreme  judge  of  its  own  rights  and 
duties.  The  former  is  a  permanent  form  of  government,  where 
the  powers,  once  given,  are  irrevocable,  and  cannot  be  resumed  or 
withdrawn  at  pleasure.  Whether  formed  by  a  single  people,  or  by 
different  societies  of  people,  in  their  political  capacity,  a  constitu- 
tion, though  originating  in  consent,  becomes  when  ratified  obliga- 
tory, as  a  fundamental  ordinance  or  law.^  The  constitution  of  a 
confederated  republic,  that  is,  of  a  national  republic  formed  of 
several  states,  is,  or  at  least  may  be,  not  less  an  irrevocable  form 
of  government  than  the  constitution  of  a  state  formed  and  ratified 
by  the  aggregate  of  the  several  counties  of  the  state  .^ 

1  The  words  "  ordain  and  establish  "  are  also  found  in  the  third  article  of  the  Consti- 
tution :  "  The  judicial  power  shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and  establish."  How  is  this  to  be 
done  by  Congress  ?  Plainly  by  a  law ;  and  when  ordained  and  established,  is  such  a 
law  a  contract  or  compact  between  the  legislature  and  the  people,  or  the  court,  or  the 
different  departments  of  the  government  1  No.  It  is  neither  more  nor  less  than  a  law, 
made  by  competent  authority,  upon  an  assent  or  agreement  of  minds.  In  Martin  v. 
Hunter,  (1  Wheat.  R.  304,  324,)  the  Supreme  Court  said,  "The  Constitution  of  the 
United  States  was  ordained  and  established,  not  by  the  States  in  their  sovereign  capaci- 
ties, but  emphatically,  as  the  preamble  of  the  Constitution  declares,  '  by  the  people  of 
the  United  States.'  "  To  the  same  effect  is  the  reasoning  of  Mr.  Chief  Justice  Marshall, 
in  delivering  the  opinions  of  the  court  in  McCullock  v.  Maryland  (4  Wheaton,  316,  402, 
to  405,  already  cited). 

2  The  Federalist,  No.  9,  15, 17, 18,  33  ;  Webster's  Speeches,  1830;  Dane's  App.  §  2, 
p.  11,  §  14,  p.  25,  &c.;  Id.  §  10,  p.  21 ;  Mr.  Martin's  Letter,  3  Elliot,  63 ;  1  Tucker's 
Black.  Comm.  App.  146. 

3  1  Wilson's  Lectures,  417. 

*  See  The  Federalist,  No.  9 ;  Id.  No.  15,  16  ;  Id.  No.  32 ;  Id.  No.  39. 


CH.  ni.]  NATURE  OF  THE  CONSTITUTION.  245 

.  §  353.  If  it  had  been  the  design  of  the  framers  of  the  Consti- 
tution, or  of  the  people  who  ratified  it,  to  consider  it  a  mere  con- 
federation, resting  on  treaty  stipulations,  it  is  difficult  to  conceive 
that  the  appropriate  terms  should  not  have  been  found  in  it.  The 
United  States  were  no  strangers  to  compacts  of  this  nature.^ 
They  had  subsisted  to  a  limited  extent  before  the  Revolution. 
The  Articles  of  Confederation,  though  in  some  few  respects  na- 
tional, were  mainly  of  a  pure  federative  character,  and  were 
treated  as  stipulations  between  States  for  many  purposes  inde- 
pendent and  sovereign .2  And  yet  (as  has  been  already  seen)  it 
was  deemed  a  political  heresy  to  maintain  that  under  it  any  State 
had  a  right  to  withdraw  from  it  at  pleasure  and  repeal  its  opera- 
tion ;  and  that  a  party  to  the  compact  had  a  right  to  revoke  that 
compact.^  The  only  places  where  the  terms  confederation  or  com- 
pact are  found  in  the  Constitution  apply  to  subjects  of  an  entirely 
different  nature,  and  manifestly  in  contradistinction  to  constitution. 
Thus,  in  the  tenth  section  of  the  first  article  it  is  declared  that "  no 
State  shall  enter  into  any  treaty,  alliance,  or  confederation  "  ;  "  no 
State  shall,  without  the  consent  of  Congress,  &c.,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power." 
Again,  in  the  sixth  article  it  is  declared  that"  all  debts  contracted 
and  engagements  entered  into  before  the  adoption  of  this  Consti- 
tution shall  be  as  valid  against  the  United  States  under  this 
Constitution  as  under  the  confederation.^^  Again,  in  the  tenth 
amendment  it  is  declared  that  "  the  powers  not  delegated  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.''  A  contract  can  in  no  just 
sense  be  called  a  delegation  of  powers. 

§  354.   But  that  which  would  seem  conclusive  on  the  subject 
(as  has  been  already  stated)  is  the  very  language  of  the  Constitu- 

1  New  England  Confederacy  of  1643;  3  Kent's  Coram.  190,  191,  192;  Rawle  on 
Const.  Introduct.  p.  24,  25.  In  the  ordinance  of  1787,  for  the  government  of  the 
territory  northwest  of  the  Ohio,  certain  articles  were  expressly  declared  to  be  **  articles 
of  compact  between  the  original  States,  [i.  e.  the  United  States,]  and  the  people  and 
States  [States  in  futuro,  for  none  were  then  in  being]  in  the  said  territory."  But  to 
guard  against  any  possible  difficulty,  it  was  declared  that  these  articles  should  "forever 
remain  unalterable  unless  by  common  consent."  So  that,  though  a  compact,  neither 
party  was  at  liberty  to  withdraw  from  it  at  its  pleasure,  or  to  absolve  itself  from  its 
obligations.  "Why  was  not  the  Constitution  of  the  United  States  declared  to  be  articles 
of  compact,  if  that  was  the  intention  of  the  framers  ? 

2  The  Federalist,  No.  15,  22,  39,  40,  43 ;  Gibbons  y.  Ogden,  9  Wheaton's  R.  1,  187. 
8  The  Federalist,  No.  22  ;  Id.  No.  43. 


246  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  III. 

tion  itself,  declaring  it  to  be  a  supreme  fundamental  law,  and  to 
be  of  judicial  obligation  and  recognition  in  the  administration  of 
justice.  "  This  Constitution,"  says  the  sixth  article,  "  and  the 
laws  of  the  United  States,  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made  or  which  shall  be  made  under  the 
authority  of  the  United  States,  shall  he  the  supreme  law  of  the  land; 
and  the  judges  in  every  State  shall  be  bound  thereby,  anything  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  notwithstand- 
ing." If  it  is  the  supreme  law,  how  can  the  people  of  any  State, 
either  by  any  form  of  its  own  constitution  or  laws  or  other  pro- 
ceedings, repeal  or  abrogate  or  suspend  it  ? 

§  355.  But  if  the  language  of  the  Constitution  were  less  ex- 
plicit and  irresistible,  no  other  inference  could  be  correctly  deduced 
from  a  view  of  the  nature  and  objects  of  the  instrument.  The 
design  is  to  establish  a  form  of  government.  This,  of  itself,  im- 
ports legal  obligation,  permanence,  and  uncontrollability  by  any 
but  the  authorities  authorized  to  alter  or  abolish  it.  The  object 
was  to  secure  the  blessings  of  liberty  to  the  people  and  to  their 
posterity.  The  avowed  intention  was  to  supersede  the  old  confed- 
eration, and  substitute  in  its  place  a  new  form  of  government. 
We  have  seen  that  the  inefficiency  of  the  old  confederation  forced 
the  States  to  surrender  the  league  then  existing,  and  to  establish 
a  national  Constitution.^  The  convention  also,  which  framed  the 
Constitution,  declared  this  in  the  letter  accompanying  it.  "  It  is 
obviously  impracticable  in  the  Federal  government  of  these  States," 
says  that  letter,  "  to  secure  all  rights  of  independent  sovereignty 
to  each,  and  yet  provide  for  the  interest  and  safety  of  all.  Indi- 
viduals entering  into  society  must  give  up  a  share  of  liberty  to 
preserve  the  rest."  ^  "  in  all  our  deliberations  on  this  subject  we 
kept  steadily  in  our  view  that  which  appeared  to  us  the  greatest 
interest  of  every  true  American,  the  consolidation  of  our  Union,  in 
which  is  involved  our  prosperity,  felicity,  safety,  perhaps  our  na- 

1  The  very  first  resolution  adopted  by  the  convention  (six  Statfes  to  two  States)  was 
in  the  following  words :  "  Resolved,  that  it  is  the  opinion  of  this  committee  that  a 
national  government  ought  to  be  established  of  a  supreme  legislative,  judiciary,  and 
executive,"  [Journal  of  Convention,  p.  83,  134,  139,  207  ;  4  Elliot's  Debates,  49. 
See  also  2  Pitkin's  History,  232  ;]  plainly  showing  that  it  was  a  national  government, 
not  a  compact,  which  they  were  about  to  establish,  —  a  supreme  legislative,  judiciary,  and 
executive,  and  not  a  mere  treaty  for  the  exercise  of  dependent  powers  during  the  good 
pleasure  of  all  the  contracting  parties. 

»  Journal  of  Convention,  p.  367,  368. 


CH.  ni.]  NATURE   OF  THE  CONSTITUTION.  247 

tional  existence."  Could  this  be  attained  consistently  with  the 
notion  of  an  existing  treaty  or  confederacy,  which  each  at  its 
pleasure  was  at  liberty  to  dissolve  ?  ^ 

1  The  language  of  the  Supreme  Court  in  Gibbons  v.  Ogden  (9  Wheat.  R.  1,  187)  is 
very  expressive  on  this  subject 

"  As  preliminary  to  the  very  able  discussions  of  the  Constitution,  which  we  have 
heard  from  the  bar,  and  as  having  some  influence  on  its  construction,  reference  has 
been  made  to  the  political  situation  of  these  States  anterior  to  its  formation.  It  has 
been  said  that  they  were  sovereign,  were  completely  independent,  and  were  connected 
with  each  other  only  by  a  league.  This  is  true.  But  when  these  allied  sovereigns 
converted  their  league  into  a  government,  when  they  converted  their  Congress  of  Am- 
bassadors, deputed  to  deliberate  on  their  common  concerns  and  to  recommend  measures 
of  general  utility,  into  a  legislature  empowered  to  enact  laws  on  the  most  interesting 
subjects,  the  whole  character  in  which  the  States  appear  underwent  a  change,  the  ex- 
tent of  which  must  be  determined  by  a  fair  consideration  of  the  instrument  by  which 
that  change  was  effected." 

[Nowhere  is  the  indissoluble  character  of  the  Federal  Union  more  forcibly  presented 
than  in  the  following  passages  from  the  opinion  of  Chief  Justice  Chase,  in  2'exas  v. 
White,  7  Wal.  724.  « 

"  It  is  needless  to  discuss  at  length  the  question  whether  the  right  of  a  State  to  with- 
draw from  the  Union  for  any  cause,  regarded  by  herself  as  sufficient,  is  consistent  with 
the  Constitution  of  the  United  States. 

"  The  Union  of  the  States  was  never  a  purely  artificial  and  arbitrary  relation.  It 
began  among  the  colonies,  and  grew  out  of  common  origin,  mutual  sympathies,  kindred 
principles,  similar  interests,  and  geographical  relations.  It  was  confirmed  and  strength- 
ened by  the  necessities  of  war,  and  received  definite  form  and  character  and  sanction 
from  the  Articles  of  Confederation.  By  these  the  Union  was  solemnly  declared  to  '  be 
perpetual,'  and  when  these  articles  were  found  to  be  inadequate  to  the  exigencies  of  the 
country,  the  Constitution  was  ordained  '  to  form  a  more  perfect  Union.*  It  is  difficult 
to  convey  the  idea  of  indissoluble  unity  more  clearly  than  by  these  words  :  What  can 
be  indissoluble,  if  a  perpetual  union,  made  more  perfect,  is  not  ? 

"  But  the  perpetuity  and  indissolubility  of  the  Union  by  no  means  implies  the  loss 
of  distinct  and  individual  existence,  or  of  the  right  of  self-government  by  the  States. 
Under  the  Articles  of  Confederation  each  State  retained  its  sovereignty,  freedom,  and 
independence,  and  every  power,  jurisdiction,  and  right  not  expressly  delegated  to  the 
United  States.  Under  the  Constitution,  though  the  powers  of  the  States  were  much 
ijestricted,  still  all  powers  not  delegated  to  the  United  States  nor  prohibited  to  the 
States,  are  reserved  to  the  States  respectively  or  to  the  people,  and  we  have  already  had 
occasion  to  remark  at  this  term,  that  *  the  people  of  each  State  compose  a  State,  having 
its  own  government,  and  endowed  with  all  the  functions  essential  to  separate  and  in- 
dependent existence,'  and  that  'without  the  States  in  union  there  could  be  no  such 
political  body  as  the  United  States.'    County  of  Lane  v.  The  State  of  Oregon,  supra,  p.  76. 

"  Not  only,  therefore,  can  there  be  no  loss  of  separate  and  independent  autonomy  to 
the  States,  through  their  union  under  the  Constitution,  but  it  may  be  not  unreasonably 
said  that  the  preservation  of  the  States  and  the  maintenance  of  their  governments  are 
as  much  within  the  design  and  care  of  the  Constitution  as  the  preservation  of  the  Union 
and  the  maintenance  of  the  national  government.  The  Constitution,  in  all  its  pro- 
visions, looks  to  an  indestructible  Union  composed  of  indestructible  States. 

"  When,  therefore,  Texas  became  one  of  the  United  States,  she  entered  into  an  indis- 
soluble relation  :  all  the  obligations  of  perpetual  union  and  all  the  guaranties  of  repub- 


248  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  III. 

'  §  356.  It  is  also  historically  known  that  one  of  the  objections 
taken  by  the  opponents  of  the  Constitution  was,  "  that  it  is  not  a 
confederation  of  the  States,  but  a  government  of  individuals.''  ^  It 
was,  nevertheless,  in  the  solemn  instruments  of  ratification  by  the 
people  of  the  several  States,  assented  to,  as  a  Constitution.  The 
language  of  those  instruments  uniformly  is,  "  We,  <fec.,  do  assent 
to  and  ratify  the  said  Constitution.^^  ^  The  forms  of  the  conven- 
tion of  Massachusetts  and  New  Hampshire  are  somewhat  peculiar 
in  their  language.  "  The  convention,  &c.,  acknowledging,  with 
grateful  hearts,  the  ^goodness  of  the  Supreme  Ruler  of  the  universe 
in  affording  the  people  of  the  United  States,  in  the  course  of  his 
providence,  an  opportunity,  deliberately  and  peaceably,  without 
force  or  surprise,  of  entering  into  an  explicit  and  solemn  compact 
with  each  other,  hy  assenting  to  and  ratifying  a  new  Constitution, 
&c.,  do  assent  to  and  ratify  the  said  Constitution."  ^  And  although 
many  declarations  of  r^hts,  many  propositions  of  amendments, 
and  many  protestations  of  reserved  powers  are  to  be  found  accom- 
panying the  ratifications  of  the  various  conventions,  sufficiently 
evincive  of  the  extreme  caution  and  jealousy  of  those  bodies,  and 
erf  the  people  at  large,  it  is  remarkable  that  there  is  nowhere  to  be 
found  the  slightest  allusion  to  the  instrument  as  a  confederation 

lican  government  in  the  Union  at  once  attached  to  the  State.  The  act  which  consum- 
mated her  admission  into  the  Union  was  something  more  than  a  compact ;  it  was  the 
incorporation  of  a  new  member  into  the  political  body.  And  it  was  final.  The  union 
between  Texas  and  the  other  States  was  as  complete,  as  perpetual,  and  as  indissoluble 
as  the  union  between  the  original  States.  There  was  no  place  for  reconsideration  or 
revocation,  except  through  revolution  or  through  consent  of  the  States. 

"  Considered,  therefore,  as  transactions  under  the  Constitution,  the  ordinance  of  seces- 
sion, adopted  by  the  convention  and  ratified  by  a  majority  of  the  citizens  of  Texas,  and 
all  the  acts  of  her  legislature  intended  to  give  effect  to  that  ordinance,  were  absolutely 
null.  They  were  utterly  without  operation  in  law.  The  obligations  of  the  State  as  a 
member  of  the  Union,  and  of  every  citizen  of  the  State  as  a  citizen  of  the  United 
States,  remained  perfect  and  unimpaired.  It  certainly  follows  that  the  State  did  not 
cease  to  be  a  State  nor  her  citizens  to  be  citizens  of  the.  Union.  If  this  were  otherwise, 
the  State  must  have  become  foreign,  and  her  citizens  foreigners.  The  war  must  have 
ceased  to  be  a  war  for  the  suppression  of  a  rebellion,  and  must  have  become  a  war  for 
conquest  and  subjugation. 

"  Our  conclusion,  therefore,  is,  that  Texas  continued  to  be  a  State,  and  a  State  of  the 
Union,  notwithstanding  the  transactions  to  which  we  have  referred,  and  this  conclusion, 
in  our  judgment,  is  not  in  conflict  with  any  act  or  declaration  of  any  department  of  the 
national  government,  but  entirely  in  accordance  with  the  whole  series  of  such  acts  and 
declarations  since  the  first  outbreak  of  the  rebellion."] 

1  The  Federalist,  No.  38,  p.  247  ;  Id.  No.  39,  p.  256. 

=*  See  the  forms  in  the  Jouruals  of  the  Convention,  &c.,  (1819,)  p.  390  to  465. 

8  Journals  of  the  Convention,  &c.,  (1819,)  p.  401,  402,  412. 


CH.  III.]  NATURE  OF  THE   CONSTITUTION.  249 

or  compact  of  States  in  their  sovereign  capacity,  and  no  reserva- 
tion of  any  right,  on  the  part  of  any  State,  to  dissolve  its  connec- 
tion, or  to  abrogate  its  assent,  or  to  suspend  the  operations  of  the 
Constitution,  as  to  itself.  On  the  contrary,  that  of  Virginia,  which 
speaks  most  pointedly  to  the  topic,  merely  declares  "  that  the  pow- 
ers granted  under  the  Constitution,  heing  derived  from  the  people  of 
the  United  States,  may  be  resumed  by  them  [not  by  any  one  of  the 
States]  whenever  the  same  shall  be  perverted  to  their  injury  or 
oppression."  ^ 

§  357.  So  that  there  is  very  strong  negative  testimony  against 
the  notion  of  its  being  a  compact  or  confederation,  of  the  nature 
of  which  we  have  spoken,  founded  upon  the  known  history  of  the 
times,  and  the  acts  of  ratification,  as  well  as  upon  the  antecedent 
Articles  of  Confederation.  The  latter  purported  on  their  face  to 
be  a  mere  confederacy.  The  language  of  the  third  article  was, 
"  The  said  States  hereby  severally  enter  into  a  firm  league  of  friend- 
ship with  each  other  for  their  common  defence,  &c.,  binding  them- 
selves to  assist  each  other."  And  the  ratification  was  by  delegates 
of  the  State  legislatures,  who  solemnly  plighted  and  engaged  the 
faith  of  their  respective  constituents,  that  they  should  abide  by  the 
determination  of  the  United  States  in  Congress  assembled  on  all 
questions  which,  by  the  said  confederation,  are  submitted  to  them ; 
and  that  the  articles  thereof  should  be  inviolably  observed  by  the 
States  they  respectively  represented.^ 

§  358.  It  is  not  unworthy  of  observation,  that  in  the  debates  of 
the  various  conventions  called  to  examine  and  ratify  the  Constitu- 
tion this  subject  did  not  pass  without  discussion.  The  opponents, 
on  many  occasions,  pressed  the  objection  that  it  was  a  consolidated 
government,  and  contrasted  it  with  the  confe deration. ^    None  of 

1  Journals  of  the  Convention,  &c.,  (1819,)  p.  416.  Of  the  right  of  a  majority  of  the 
whole  people  to  change  their  Constitution  at  will  there  is  no  doubt.  See  1  Wilson's 
Lectures,  418;  1  Tucker's  Black.  Comm.  165. 

2  Articles  of  Confederation,  1781,  art.  13.  [The  national  view  of  the  Constitution 
is  very  forcibly  presented  by  that  eminent  lawyer,  Mr.  A.  J.  Dallas.  Life  and  Writ- 
ings, by  G.  M.  Dallas,  100-107.] 

8  I  do  not  say  that  the  manner  of  stating  the  objection  was  just,  but  the  fact  abun- 
dantly appears  in  the  printed  debates.  For  instance,  in  the  Virginia  debates,  (2  Elliot's 
Deb.  47,)  Mr.  Henry  said,  "  That  this  is  a  consolidated  government  is  demonstrably 
clear."  "  The  language  [is]  *  We,  the  people,'  instead  of  '  We,  the  States.'  States  are 
the  characteristics  and  soul  of  a  confederation.  If  the  States  be  not  the  agents  of  this 
compact,  it  must  be  one  great  consolidated  national  government  of  the  people  of  all  the 
States."  The  like  suggestion  will  be  found  in  various  places  in  Mr.  Elliot's  Debates  in 
other  States.  See  1  Elliot's  Debates,  91,  92,  110.  See  also  3  Amer.  Museum,  422 ; 
2  Amer.  Museum,  540,  546  ;  Mr.  Martin's  Letter,  4  Elliot's  Debates,  p.  53. 


250  CONSTITUTION  OP  THE  UNITED  STATES.  [BOOK  III. 

its  advocates  pretended  to  deny  that  its  design  was  to  establish  a 
national  government  as  contradistinguished  from  a  mere  league 
or  treaty,  however  they  might  oppose  the  suggestions  that  it 
was  a  consolidation  of  the  States.^  In  the  North  Carolina  de- 
bates one  of  the  members  laid  it  down  as  a  fundamental  principle 
of  every  safe  and  free  government,  that  "  a  government  is  a  com- 
pact between  the  rulers  and  the  people."  This  was  most  strenu- 
ously denied  on  the  other  side  by  gentlemen  of  great  eminence. 
They  said,  "  A  compact  cannot  be  annulled,  but  by  the  consent  of 
both  parties.  Therefore,  unless  the  rulers  are  guilty  of  oppression, 
the  people,  on  the  principles  of  a  compact,  have  no  right  to  new- 
model  their  government.  This  is  held  to  be  the  principle  of  some 
monarchial  governments  in  Europe.  Our  government  is  founded 
on  much  nobler  principles.  The  people  are  known  with  certainty 
to  have  originated  it  themselves.  Those  in  power  are  their  ser- 
vants and  agents.  And  the  people,  without  their  consent,  may 
new-model  the  government  whenever  they  think  proper,  not  merely 
because  it  is  oppressively  exercised,  but  because  they  think  another 
form  will  be  more  conducive  to  their  welfare."  ^ 

§  359.  Nor  should  it  be  omitted,  that  in  the  most  elaborate 
expositions  of  the  Constitution  by  its  friends,  its  character,  as  a 
permanent  form  of  government,  as  a  fundamental  law,  as  a  supreme 
rule,  which  no  State  was  at  liberty  to  disregard,  suspend,  or  annul, 
was  constantly  admitted  and  insisted  on,  as  one  of  the  strongest  rea- 
sons why  it  should  be  adopted  in  lieu  of  the  confederation. ^  It  is 
matter  of  surprise,  therefore,  that  a  learned  commentator  should 
have  admitted  the  right  of  any  State,  or  of  the  people  of  any  State, 
without  the  consent  of  the  rest,  to  secede  from  the  Union  at  its 
own  pleasure.*  The  people  of  the  United  States  have  a  right  to 
abolish  or  alter  the  Constitution  of  the  United  States  ;  but  that 
the  people  of  a  single  State  have  such  a  right  is  a  proposition 
requiring  some  reasoning  beyond  the  suggestion  that  it  is  implied 

i  3  Elliot's  Debates,  145,  257,  291  ;  The  Federalist,  No.  32,  38,  39,  44,  45  ;  3  Amer. 
Museum,  422,  424. 

2  Mr.  Iredell,  3  Elliot's  Debates,  24,  25  ;  Id.  200,  Mr.  McClure,  Id.  25 ;  Mr.  Spen- 
cer, Id.  26,  27  ;  Id.  139.  See  also  3  Elliot's  Debates,  156.  See  also  Chisholm  v.  Georgia, 
3  Dall.  419.  See  also  in  Penn.  Debates,  Mr.  Wilson's  denial  that  the  Constitution  was 
a  compact ;  3  Elliot's  Debates,  286,  287.  See  also  McCulloch  v.  Maryland,  4  Wheaton, 
316,  404. 

»  The  Federalist,  No.  15  to  20,  38,  39,  44;  North  Amer.  Review,  October,  1827,  p. 
265,  266. 

*  Kawle  on  the  Constitution,  ch.  32,  p.  295,  296,  297,  302,  305. 


CH.  III.J  NATURE   OF  THE  CONSTITUTION.  251 

in  the  principles  on  which  our  political  systems  are  founded.^  It 
seems,  indeed,  to  have  its  origin  in  the  notion  of  all  governments 
being  founded  in  compact,  and  therefore  liable  to  be  dissolved  by 
the  parties,  or  either  of  them ;  a  notion  which  it  has  been  our 
purpose  to  question,  at  least  in  the  sense  to  which  the  objection 
applies. 

§360.  To  us  the  doctrine  of  Mr.  Dane  appears  far  better 
founded,  that  "  the  Constitution  of  the  United  States  is  not  a  com- 
pact or  contract  agreed  to  by  two  or  more  parties,  to  be  construed 
by  each  for  itself,  and  here  to  stop  for  the  want  of  a  common 
arbiter  to  revise  the  construction  of,  each  party  or  State.  But  that 
it  is,  as  the  people  have  named  and  called  it,  truly  a  Constitution ; 
and  they  properly  said, '  We,  the  people  of  the  United  States,  do 
ordain  and  establish  this  Constitution,'  and  not  we,  the  people  of 
each  State."  ^  And  this  exposition  has  been  sustained  by  opinions 
of  some  of  our  most  eminent  statesmen  and  judges.^  It  was  truly 
remarked  by  the  Federalist,*  that  the  Constitution  was  the  result 
neither  from  the  decision  of  a  majority  of  the  people  of  the  Union, 
nor  from  that  of  a  majority  of  the  States.  It  resulted  from  the 
unanimous  assent  of  the  several  States  that  are  parties  to  it,  dif- 

1  Dane's  App.  §  59,  60,  p.  69,  71. 

2  Mr.  (afterwards  Mr.  Justice)  Wilson,  who  was  a  member  of  the  Federal  Conven- 
tion, uses,  in  the  Pennsylvania  Debates,  the  following  language  :  "  We  were  told,  &c., 
that  the  convention  no  doubt  thought  they  were  forming  a  compact  or  contract  of  the 
greatest  importance.  It  was  matter  of  surprise  to  see  the  great  leading  principles  of 
this  system  still  so  very  much  misunderstood.  I  cannot  answer  for  what  every  member 
thought,  but  I  believe  it  cannot  be  said  they  thought  they  were  making  a  contract, 
because  I  cannot  discover  the  least  trace  of  a  compact  in  that  system.  There  can  he  no 
compact,  unless  there  are  more  parties  than  one.  It  is  a  new  doctrine,  that  one  can  make  a 
compact  with  himself.  *  The  convention  were  forming  contracts ! '  With  whom  1  I  know 
no  bargains  that  were  there  made,  I  am  unable  to  conceive  who  the  parties  could  be. 
The  State  governments  make  a  bargain  with  each  other.  That  is  the  doctrine  that  is 
endeavored  to  be  established  by  gentlemen  in  the  opposition ;  their  State  sovereignties 
wish  to  be  represented.  But  far  other  were  the  ideas  of  the  convention.  This  is  not  a 
government  founded  upon  compact.  It  is  founded  upon  the  power  of  the  people.  They  ex- 
press in  their  name  and  their  authority,  we,  the  people  do  ordain  and  establish,"  &c.  3 
Elliot's  Debates,  286,  287.  He  adds,  (Id.  288,)  "  This  system  is  not  a  compact  or  con- 
tract. The  system  tells  you  what  it  is ;  it  is  an  ordinance  and  establishment  of  the  peo- 
ple." 9  Dane's  Abridg.  ch.  187,  art.  20,  §  15,  p.  589,  590;  Dane's  App.  §  10,  p.  21, 
§  59,  p.  69. 

8  See  Ware  v.  Eylton,  3  Dall.  199  ;  Oiisholm  v.  Georgia,  3  Dall.  419 ;  1  Elliot's  De- 
bates, 72  ;  2  Elliot's  Debates,  47  ;  Webster's  Speeches,  p.  410  ;  The  Federalist,  No.  22, 
33,  39  ;  2  Amer.  Museum,  536,  546  ;  Virginia  Debates,  in  1798,  on  the  Alien  Laws,  p. 
Ill,  136,  138,  140;  North  American  Review,  October,  1830,  p.  437,444. 

*  No.  39. 


252  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  IH. 

fering  no  otherwise  from  their  ordinary  assent  than  its  being  ex- 
pressed, not  by  the  legislative  authority,  but  by  that  of  the  peo- 
ple themselves. 

§  361.  But  if  the  Constitution  could,  in  the  sense  to  which  we 
have  alluded,  be  deemed  a  compact,  between  whom  is  it  to  be 
deemed  a  compact  ?  We  have  already  seen  that  the  learned  com- 
mentator on  Blackstone  deems  it  a  compact  with  several  aspects  ; 
and  first  between  the  States^  (as  contradistinguished  from  the  peo- 
ple of  the  States,)  by  which  the  several  States  have  bound  them- 
selves to  each  other  and  to  the  Federal  government.^  The  Vir- 
ginia Resolutions  of  1798  assert  that  "  Virginia  views  the  powers 
of  the  Federal  government  as  resulting  from  the  compact  to  which 
the  States  are  parties.^^  This  declaration  was,  at  the  time,  matter 
of  much  debate  and  difference  of  opinion  among  the  ablest  repre- 
sentatives in  the  legislature.  But  when  it  was  subsequently  ex- 
pounded by  Mr.  Madison,  in  the  celebrated  Report  of  January, 
1800,  after  admitting  that  the  term  "  states  "  is  used  in  different 
senses,  and  among  others  that  it  sometimes  means  the  people  com- 
posing a  political  society  in  their  highest  sovereign  capacity,  he 
considers  the  resolution  unobjectionable,  at  least  in  this  last  sense, 
because  in  that  sense  the  Constitution  was  submitted  to  the 
"  States  "  ;  in  that  sense  the  "  States ''  ratified  it ;  and  in  that 
sense  the  States  are  consequently  parties  to  the  compact  from 
which  the  powers  of  the  Federal  government  result.^  And  that  is 
the  sense  in  which  he  considers  the  States  parties  in  his  later  and 
more  deliberate  examinations.^ 

§  362.  This  view  of  the  subject  is,  however,  wholly  at  variance 
with  that  on  which  we  are  commenting ;  and  which,  having  no 
foundation  in  the  words  of  the  Constitution,  is  altogether  a  gratui- 
tous assumption,  and  therefore  inadmissible.  It  is  no  more  true 
that  a  State  is  a  party  to  the  Constitution,  as  such,  because  it  was 
framed  by  delegates  chosen  by  the  States,  and  submitted  by  the 
legislatures  thereof  to  the  people  of  the  States  for  ratification,  and 
that  the  States  are  necessary  agents  to  give  effect  to  some  of  its 
provisions,  than  that  for  the  same  reasons  the  governor  or  senate 
or  house  of  representatives  or  judges,  either  of  a  State  or  the 

1  1  Tuck.  Black.  Comm.  169;  Hayne's  Speech  in  the  Senate,  in  1830;  4  Elliot's 
Debates,  315,  316. 

2  Resolutions  of  1800,  p.  5,  6. 

^  North  American  Review,  Oct.  1830,  p.  537.  544  ;  [Writings  of  Madison,  IV.  95, 
395.1 


CH.  III.]  NATURE  OF  THE   CONSTITUTION.  253 

United  States,  are  parties  thereto.  No  State,  as  such,  that  is,  the 
body  politic,  as  it  was  actually  organized,  had  any  power  to  enter 
into  a  contract  for  the  establishment  of  any  new  government  over 
the  people  thereof,  or  to  delegate  the  powers  of  government  in 
whole  or  in  part  to  any  other  sovereignty.  The  State  governments 
were  framed  by  the  people  to  administer  the  State  constitutions, 
such  as  they  were,  and  not  to  transfer  the  administration  thereof 
to  any  other  persons  or  sovereignty.  They  had  no  authority  to 
enter  into  any  compact  or  contract  for  such  a  purpose.  It  is  no- 
where given  or  implied  in  the  State  constitutions ;  and  conse- 
quently, if  actually  entered  into,  (as  it  was  not,)  would  have  had 
no  obligatory  force.  The  people,  and  the  people  only,  in  their 
original  sovereign  capacity,  had  a  right  to  change  their  form  of 
government,  to  enter  into  a  compact,  and  to  transfer  any  sover- 
eignty to  the  national  government.^    And  the  States  never,  in  fact, 

1  4  Wheaton,  404.  [Obviously,  State  governments,  created  by  the  people  and  hold- 
ing from  them  certain  delegated  powers  in  trust,  which  they  exercised  for  the  States 
severally,  as  members  of  a  confederacy,  had  no  authority  under  their  delegation  to  set 
aside  the  confederation,  inaugurate  a  revolution,  and  institute  a  new  and  more  ener- 
getic government  by  which  the  States  they  represented  as  agencies  would  be  shorn  of 
many  most  important  powers,  and  subjected,  together  with  their  people,  to  many 
restraints  unknown  before.  Revolutions  must  originate  with,  and  be  effected  by,  the 
people ;  existing  governments  have  only  to  confine  themselves  to  a  faithful  execution  of 
the  trusts  confided  to  them ;  and  if  the  persons  in  authority  go  beyond  this  limit  and 
take  steps  to  set  aside  the  instrument  of  government  under  which  alone  they  have  the 
right  to  represent  the  people,  they  may  justify  their  conduct,  perhaps,  as  individuals,  if 
revolution  shall  be  accomplished  and  prove  beneficial ;  but  it  is  an  abuse  of  terms  to 
speak  of  their  act  as  that  of  the  government  of  which  they  were  members,  when  in  truth 
it  is  something  so  far  from  being  contemplated  by,  that  it  is  actually  repugnant  to,  the 
delegation  of  authority,  and  therefore,  instead  of  being  within  the  trust  conferred,  is 
necessarily  subversive  of  it. 

Mr.  Buchanan  appears  to  have  fallen  into  this  error  when  he  assumed,  in  1860,  that 
to  put  forth  the  power  of  the  government  to  retake  the  forts,  arsenals,  and  other  prop- 
erty of  the  United  States,  and  to  enforce  the  performance  of  national  duties  within 
one  of  the  States,  the  members  of  whose  legislative  and  executive  departments  had  by 
formal  acts  and  declarations  announced  its  withdrawal  from  the  Union,  would  be  to 
wage  war  against  such  State.  See  his  message  of  December  4,  1860,  and  his  ex- 
planation thereof  in  his  account  of  his  administration,  ch.  6. 

The  power  "  to  coerce  a  State  "  was  that  which  Mr.  Buchanan  was  solicitous  not  to 
recognize.  "Not  for  all  the  land  of  the  continent  of  North  America  would  I  agree  that 
the  Federal  government  had  power  to  coerce  a  State,"  said  Mr.  Senator  Jefferson  Davis, 
in  addressing  his  constituents  of  Mississippi  on  the  admission  of  Kansas.  To  this 
Governor  Wise  of  Virginia  replied  :  "  This  surely  cannot  bo  meant  in  an  absolute 
sense,  either  that  a  State  cannot  be  coerced,  or  that  in  some  cases  she  ought  not  to  be 
coerced.  If  so,  a  case  can  be  put  in  which  I  presume  every  patriot  ought  to  be  willing 
to  give  the  price  of  all  the  waste  lands  of  the  continent,  if  necessary,  to  coerce  her." 
Or,  as  the  context  shows  his  meaning  to  be,  to  compel  the  persons  in  authority,  as  well 


254  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

did  in  their  political  capacity,  as  contradistinguished  from  the  peo- 
ple thereof,  ratify  the  Constitution.  They  were  not  called  upon  to 
do  it  by  Congress,  and  were  not  contemplated  as  essential  to  give 
validity  to  it.^ 

as  the  people  of  the  State  in  general,  to  submit  to  such  laws  of  Congress  as,  having 
been  passed  in  pursuance  of  the  Constitution,  have  become  the  supreme  law  of  the  land. 
Wise  on  Territorial  Government  and  the  Admission  of  States,  p.  103.] 

1  The  Federalist,  No.  39.  In  confirmation  of  this  view,  we  may  quote  the  reasoning 
of  the  Supreme  Court  in  the  case  of  McCulloch  v.  Maryland,  (4  Wheaton's  R.  316,)  in 
answer  to  the  very  argument.  "  The  powers  of  the  general  government,  it  has  been 
said,  are  delegated  by  the  States,  who  alone  are  truly  sovereign,  and  must  be  exercised 
in  subordination  to  the  States,  who  alone  possess  supreme  dominion. 

"  It  would  be  difficult  to  sustain  this  proposition.  The  convention  which  framed  the 
Constitution  was  indeed  elected  by  the  State  legislatures.  But  the  instrument,  when 
it  came  from  their  hands,  was  a  mere  proposal,  without  obligation  or  pretensions  to  it. 
It  was  reported  to  the  then  existing  Congress  of  the  United  States  with  a  request  that 
it  might  be  submitted  to  a  convention  of  delegates,  chosen  in  each  State  by  the  people 
thereof,  under  the  recommendation  of  its  legislature,  for  their  assent  and  ratification. 
This  mode  of  proceeding  was  adopted ;  and  by  the  convention,  by  Congress,  and  by  the 
State  legislatures,  the  instrument  was  submitted  to  the  people.  They  acted  upon  it  in 
the  only  manner  in  which  they  can  act  safely,  effectively,  and  wisely,  on  such  a  subject, 
by  assembling  in  convention.  It  is  true,  they  assembled  in  their  several  States,  —  and 
where  else  should  they  have  assembled  ?  No  political  dreamer  was  ever  wild  enough  to 
think  of  breaking  down  the  lines  which  separate  the  States,  and  of  compounding  the 
American  people  into  one  common  mass.  Of  consequence,  when  they  act,  they  act  in 
their  States.  But  the  measures  they  adopt  do  not,  on  that  account,  cease  to  be  the 
measures  of  the  people  themselves,  or  become  the  measures  of  the  State  governments. 

"From  these  conventions  the  Constitution  derives  its  whole  authority.  The  govern- 
ment proceeds  directly  from  the  people ;  is  '  ordained  and  established '  in  the  name  of 
the  people ;  and  is  declared  to  be  ordained,  *  in  order  to  form  a  more  perfect  Union, 
establish  justice,  insure  domestic  tranquillity,  and  secure  the  blessings  of  liberty  to 
themselves  and  to  their  posterity.'  The  assent  of  the  States,  in  their  sovereign  capacity, 
is  implied  in  calling  a  convention,  and  thus  submitting  that  instrument  to  the  peo- 
ple. But  the  people  were  at  perfect  liberty  to  accept  or  reject  it,  and  their  act  was  final. 
It  required  not  the  affirmance,  and  could  not  be  negatived  by  the  State  governments. 
The  Constitution,  when  thus  adopted,  was  of  complete  obligation,  and  bound  the  State 
sovereignties. 

"  It  has  been  said  that  the  people  had  already  surrendered  all  their  powers  to  the 
State  sovereignties,  and  had  nothing  more  to  give.  But,  surely,  the  question  whether 
they  may  resume  and  modify  the  powers  granted  to  government  does  not  remain  to  be 
settled  in  this  country.  Much  more  might  the  legitimacy  of  the  general  government 
be  doubted,  had  it  been  created  by  the  States.  The  powers  delegated  to  the  State  sov- 
ereignties were  to  be  exercised  by  themselves,  not  by  a  distinct  and  independent  sov- 
ereignty created  by  themselves.  To  the  formation  of  a  league,  such  as  was  the  confed- 
eration, the  State  sovereignties  were  certainly  competent.  But  when,  *  in  order  to  form 
a  more  perfect  union,*  it  was  deemed  necessary  to  change  this  alliance  into  an  effective 
government,  possessing  great  and  sovereign  powers,  and  acting  directly  on  the  people, 
the  necessity  of  referring  it  to  the  people,  and  of  deriving  its  powers  directly  from  them, 
was  felt  and  acknowledged  by  all. 

"  The  government  of  the  Union,  then,  (whatever  may  be  the  influence  of  this  fact  on 


CH.  III.]  NATURE  OF  THE  CONSTITUTION.  255 

§  363.  The  doctrine,  then,  that  the  States  are  parties  is  a  gra- 
tuitous assumption.  In  the  language  of  a  most  distinguished  states- 
man,^ "  the  Constitution  itself  in  its  very  front  refutes  that.  It 
declares  that  it  is  ordained  and  established  by  the  people  of  the 
United  States.  So  far  from  saying  that  it  is  established  by  the 
governments  of  the  several  States,  it  does  not  even  say  that  it  is 
established  hy  the  people  of  the  several  States.  But  it  pronounces 
that  it  is  established  by  the  people  of  the  United  States  in  the 
aggregate.  Doubtless  the  people  of  the  several  States,  taken  col- 
lectively, constitute  the  people  of  the  United  States.  But  it  is  in 
this  their  collective  capacity,  it  is  as  all  the  people  of  the  United 
States,  that  they  establish  the  Constitution."  ^ 

§  364.  But  if  it  were  admitted  that  the  Constitution  is  a  com- 
pact between  the  States,  "  the  inferences  deduced  from  it,"  as  has 
been  justly  observed  by  the  same  statesman,^  "  are  warranted  by 
no  just  reason.  Because,  if  the  Constitution  be  a  compact  between 
the  States,  still  that  Constitution  or  that  compact  has  established 
a  government  with  certain  powers ;  and  whether  it  be  one  of  these 
powers,  that  it  shall  construe  and  interpret  for  itself  the  terms  of 
the  compact  in  doubtful  cases,  can  only  be  decided  by  looking  to 
the  compact,  and  inquiring  what  provisions  it  contains  on  that 
point.     Without  any  inconsistency  with  natural  reason,  the  gov- 

the  case,)  is  emphatically  and  truly  a  government  of  the  people.  In  form  and  sub- 
stance it  emanates  from  them.  Its  powers  are  granted  by  them,  and  are  to  be  exercised 
directly  on  them  and  for  their  benefit. 

"  This  government  is  acknowledged  by  all  to  be  one  of  enumerated  powers.  The 
principle  that  it  can  exercise  only  the  powers  granted  to  it  would  seem  too  apparent  to 
have  required  to  be  enforced  by  all  those  arguments  which  its  enlightened  friends,  while- 
it  was  depending  before  the  people,  found  it  necessary  to  urge.  That  principle  is  now 
universally  admitted.  But  the  question  respecting  the  extent  of  the  powers  actually 
granted  is  perpetually  arising,  and  will  probably  continue  to  arise  as  long  as  our  sys- 
tem shall  exist." 

1  Webster's  Speeches,  1830,  p.  431  ;  4  Elliot's  Debates,  326;  [3  Webster's  Works, 
346.     See  also  Id.  449  et  seq.] 

2  Mr.  Dane  reasons  to  the  same  effect,  though  it  is  obvious  that  he  could  not  at  the 
time  have  had  any  knowledge  of  the  views  of  Mr.  Webster.  9  Dane's  Abridg.  ch.  189, 
art.  20,  §  15,  p.  589,  590 ;  Dane's  App.  40,  41,  42.  He  adds,  "  If  a  contract,  when 
and  how  did  the  Union  become  a  party  to  it  1  If  a  compact,  why  is  it  never  so  denom- 
inated, but  often  and  invariably  in  the  instrument  itself,  and  in  its  amendments,  styled 
'  this  Constitution '  1  and  if  a  contract,  why  did  the  framers  and  people  call  it  the 
supreme  law?  9  Dane's  Abridg.  590.  In  Martin  v.  Hunter,  (1  Wheat.  R.  304,  324,) 
the  Supreme  Court  expressly  declared  that  '  the  Constitution  was  ordained  and  estab- 
lished,' not  by  the  States  in  their  sovereign  capacity,  but  emphatically,  as  the  preamble 
of  the  Constitution  declares,  '  by  the  people  of  the  United  States.'  " 

3  Webster's  Speeches,  429  ;  4  Elliot's  Debates,  324. 


256  CONSTITUTION  OF  THE  UNITED   STATES.  [BOOK  III. 

eminent  even  thus  created  might  be  trusted  with  this  power  of 
construction.  The  extent  of  its  powers  must,  therefore,  be  sought 
in  the  instrument  itself.''  "  If  the  Constitution  were  the  mere  crea- 
tion of  the  State  governments,  it  might  be  modified,  interpreted, 
or  construed  according  to  their  pleasure.  But  even  in  that  case  it 
would  be  necessary  that  they  should  agree.  One  alone  could  not 
interpret  it  exclusively.  One  alone  could  not  construe  it.  One  alone 
could  not  modify  it."  "  If  all  the  States  are  parties  to  it,  one  alone 
can  have  no  right  to  fix  upon  it  her  own  peculiar  construction."  ^ 

§  365.  Then  is  it  a  compact  between  the  people  of  the  several 
States,  each  contracting  with  all  the  people  of  the  other  States  ?  ^ 
It  may  be  admitted,  as  was  the  early  exposition  of  its  advocates, 
"  that  the  Constitution  is  founded  on  the  assent  and  ratification  of 
the  people  of  America,  given  by  deputies  elected  for  the  special 
purpose  ;  but  that  this  assent  and  ratification  is  to  be  given  by  the 
whole  people,  not  as  individuals  composing  one  entire  nation,  but 
as  composing  the  distinct  and  independent  States,  to  which  they 
respectively  belong.  It  is  to  be  the  assent  and  ratification  of  the 
several  States,  derived  from  the  supreme  authority  in  each  State, 
the  authority  of  the  people  themselves.  The  act,  therefore,  estab- 
lishing the  Constitution,  will  not  be  [is  not  to  be]  a  national,  but 
a  federal  act."  ^  "  It  may  also  be  admitted,"  in  the  language  of 
one  of  its  ihost  enlightened  commentators,  that  "  it  was  formed, 
not  by  the  governments  of  the  component  States,  as  the  Federal 
government,  for  which  it  was  substituted,  was  formed.  Nor  was 
it  formed  by  a  majority  of  the  people  of  the  United  States,  as  a 
single  community,  in  the  manner  of  a  consolidated  government. 

1  Even  under  the  confederation,  which  was  confessedly  in  many  respects  a  mere 
league  or  treaty,  though  in  other  respects  national.  Congress  unanimously  resolved  that 
it  was  not  within  the  competency  of  any  State  to  pass  acts  for  interpreting,  explaining, 
or  construing  a  national  treaty,  or  any  part  or  clause  of  it.  Yet  in  that  instrument 
there  was  no  express  judicial  power  given  to  the  general  government  to  construe  it.  It 
was,  however,  deemed  an  irresistible  and  exclusive  authority  in  the  general  govei-nment, 
from  the  very  nature  of  the  other  powers  given  to  them  ;  and  especially  from  the  power 
to  make  war  and  peace,  and  to  form  treaties.  Journals  of  Congress,  April  13,  1787,  p. 
32,  &c. ;  Rawle  on  Const.  App.  2,  p.  316,  320. 

2  In  the  resolutions  passed  by  the  Senate  of  South  Carolina,  in  December,  1827,  it 
was  declared  that  *  the  Constitution  of  the  United  States  is  a  compact  between  the 
people  of  the  different  States  with  each  other,  as  separate  and  independent  sovereign- 
ties." Mr.  Grimke  filed  a  protest  founded  on  different  views  of  it.  See  Grimke''s  Ad- 
dress and  Resolutions  in  1828,  (edition,  1729,  at  Charleston,)  where  his  exposition  of 
the  Constitution  is  given  at  large,  and  maintained  in  a  very  able  speech. 

3  The  Federalist,  No.  39  ;  see  Sturgis  ^.  Crowninshield,  4  Wheat.  R.  122,  193. 


CH.  III.]  NATURE   OF  THE   CONSTITUTION.  257 

It  was  formed  by  the  States,  that  is,  by  the  people  in  each  of  the 
States,  acting  in  their  highest  sovereign  capacity  ;  and  formed  con- 
sequently by  the  same  authority  which  formed  the  State  constitu- 
tions." ^  But  this  would  not  necessarily  draw  after  it  the  conclu- 
sion that  it  was  to  be  deemed  a  compact,  (in  the  sense  to  which  we 
have  so  often  alluded,)  by  which  each  State  was  still,  after  the  ratifi- 
cation, to  act  upon  it,  as  a  league  or  treaty,  and  to  withdraw  from 
it  at  pleasure.  A  government  may  originate  in  the  voluntary 
compact  or  assent  of  the  people  of  several  States,  or  of  a  people 
never  before  united,  and  yet  when  adopted  and  ratified  by  them 
be  no  longer  a  matter  resting  in  compact,  but  become  an  executed 
government  or  constitution,  a  fundamental  law,  and  not  a  mere 
league.  But  the  difficulty  in  asserting  it  to  be  a  compact  between 
the  people  of  each  State  and  all  the  people  of  the  other  States  is, 
that  the  Constitution  itself  contains  no  such  expression,  and  no 
such  designation  of  parties.^  We,  "  the  people  of  the  United 
States,  &c.,  do  ordain  and  establish  this  Constitution,''^  is  the  lan- 
guage ;  and  not  we,  the  people  of  each  State,  do  establish  this 
compact  between  ourselves  and  the  people  of  all  the  other  States. 
We  are  obliged  to  depart  from  the  words  of  the  instrument  to 
sustain  the  other  interpretation  ;  an  interpretation  which  can  serve 
no  better  purpose  than  to  confuse  the  mind  in  relation  to  a  sub- 
ject otherwise  clear.  It  is  for  this  reason  that  we  should  prefer 
an  adherence  to  the  words  of  the  Constitution,  and  to  the  judicial 
exposition  of  these  words  according  to  their  plain  and  common 
import.^ 

1  Mr.  Madison's  Letter  in  North  American  Eeview,  October,  1830,  p.  537,  538. 

2  See  Dane's  App.  §  32,  33,  p.  41,  42,  43. 

3  Chisholm  v.  Georgia,  2  Dall.  419  ;  Martin  v.  Hunter,  1  Wheat.  R.  304,324  ;  Dane's 
App.  p.  22,  24,  29,  30,  37,  39,  40,  41,  42,  43,  51. 

This  subject  is  considered  with  much  care  by  President  Monroe,  in  his  Exposition 
accompanying  his  Message  of  the  4th  of  May,  1822.  It  is  due  to  his  memory  to  insert 
the  following  passage,  which  exhibits  his  notion  of  the  supremacy  of  the  Union :  — 

"  The  Constitution  of  the  United  States,  being  ratified  by  the  people  of  the  several 
States,  became,  of  necessity,  to  the  extent  of  its  powers,  the  paramount  authority  of  the 
Union.  On  sound  principles  it  can  be  viewed  in  no  other  light.  The  people,  the  high- 
est authority  known  to  our  system,  from  whom  all  our  institutions  spring,  and  on  whom 
they  depend,  formed  it.  Had  the  people  of  the  several  States  thought  proper  to  incor- 
porate themselves  into  one  community  under  one  government,  they  might  have  done  it. 
They  had  the  power,  and  there  was  nothing  then,  nor  is  there  anything  now,  should 
they  be  so  disposed,  to  prevent  it.  They  wisely  stopped,  however,  at  a  certain  point, 
extending  the  incorporation  to  that  point,  making  the  national  government  thus  far  a 
consolidated  government,  and  preserving  the  State  governments,  without  that  limit, 

VOL.  I.  17 


258  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  III. 

§  366.  But  supposing  that  it  were  to  be  deemed  such  a  compact 
among  the  people  of  the  several  States,  let  us  see  what  the  en- 
lightened statesman,  who  vindicates  that  opinion,  holds  as  the 
appropriate  deduction  from  it.  "  Being  thus  derived  (says  he) 
from  the  same  source  as  the  constitutions  of  the  States,  it  has 
within  each  State  the  same  authority  as  the  constitution  of  the 
State  ;  and  is  as  much  a  constitution  within  the  strict  sense  of  the 
term,  within  its  prescribed  sphere,  as  the  constitutions  of  the 
States  are  within  their  respective  spheres.  But  with  this  obvious 
and  essential  difference,  that,  being  a  compact  among  the  States 
in  their  highest  sovereign  capacity,  and  constituting  the  people 
thereof  one  people  for  certain  purposes,  it  cannot  be  altered  or  an- 

perfectly  sovereign  and  independent  of  the  national  government.  Had  the  people  of 
the  several  States  incorporated  themselves  into  one  community,  they  must  have  remained 
such ;  their  constitution  becoming  then,  like  the  constitutions  of  the  several  States,  in- 
capable of  change  until  altered  by  the  will  of  the  majority.  In  the  institution  of  a 
State  government  by  the  citizens  of  a  State,  a  compact  is  formed  to  which  all  and  every 
citizen  are  equal  parties.  They  are  also  the  sole  parties,  and  may  amend  it  at  pleasure. 
In  the  institution  of  the  government  of  the  United  States  by  the  citizens  of  every  State, 
a  compact  was  formed  between  the  whole  American  people,  which  has  the  same  force, 
and  partakes  of  all  the  qualities,  to  the  extent  of  its  powers,  as  a  compact  between  the 
citizens  of  a  State  in  the  formation  of  their  own  constitution.  It  cannot  be  altered, 
except  by  those  who  formed  it,  or  in  the  mode  prescribed  by  the  parties  to  the  compact 
itself. 

"  This  Constitution  was  adopted  for  the  purpose  of  remedying  all  the  defects  of  the 
confederation ;  and  in  this  it  has  succeeded  beyond  any  calculation  that  could  have 
been  formed  of  any  human  institution.  By  binding  the  States  together,  the  Constitu- 
tion performs  the  great  office  of  the  confederation,  but  it  is  in  that  sense  only  that  it  has 
any  of  the  properties  of  that  compact,  and  in  that  it  is  more  effectual  to  the  purpose, 
as  it  holds  them  together  by  a  much  stronger  bond,  and  in  all  other  respects,  in  which 
the  confederation  failed,  the  Constitution  has  been  blessed  with  complete  success.  The 
confederation  was  a  compact  between  separate  and  independent  States ;  the  execution 
of  whose  articles,  in  the  powers  which  operated  internally,  depended  on  the  State  gov- 
ernments. But  the  great  office  of  the  Constitution  by  incorporating  the  people  of  the 
several  States,  to  the  extent  of  its  powers,  into  one  community,  and  enabling  it  to  act 
directly  on  the  people,  was  to  annul  the  powers  of  the  State  governments  to  that  ex- 
tent, except  in  cases  where  they  were  concurrent,  and  to  preclude  their  agency  in  giv- 
ing effect  to  those  of  tiie  general  government.  The  government  of  the  United  States 
relies  on  its  own  means  for  the  execution  of  its  powers,  as  the  State  governments  do  for 
the  execution  of  theirs ;  both  governments  having  a  common  origin  or  sovereign,  the 
people,  —  the  State  governments,  the  people  of  each  State  ;  the  national  government,  the 
people  of  every  State,  —  and  being  amenable  to  the  power  which  created  it.  It  is  by  ex- 
ecuting its  functions  as  a  government,  thus  originating  and  thus  acting,  that  the  Consti- 
tution of  the  United  States  holds  the  States  together,  and  performs  the  office  of  a  league. 
It  is  owing  to  the  nature  of  its  powers  and  the  high  source  from  whence  they  are  de- 
rived, the  people,  that  it  performs  that  office  better  than  the  confederation  or  any  league 
which  ever  existed,  being  a  compact,  which  the  State  governments  did  not  form,  to 
which  they  are  not  parties,  and  which  executes  its  own  powers  independently  of  them." 


CH  III.]  NATURE  OP  THE  CONSTITUTION.  259 

nulled  at  the  will  of  the  States  individually,  as  the  constitution  of 
a  State  may  be  at  its  individual  will."  ^ 

§  367.  The  other  branch  of  the  proposition  we  have  been  con- 
sidering is,  that  it  is  not  only  a  compact  between  the  several  States 
and  the  people  thereof,  but  also  a  compact  between  the  States  and 
the  Federal  government ;  and  e  converso  between  the  Federal  gov- 
ernment and  the  several  States  and  every  citizen  of  the  United 
States. 2  This  seems  to  be  a  doctrine  far  more  involved  and  ex- 
traordinary and  incomprehensible  than  any  part  of  the  preceding. 
The  difficulties  have  not  escaped  the  observation  of  those  by 
whom  it  has  been  advanced.  Although  (says  the  learned  com- 
mentator) the  Federal  government  can,  in  no  possible  view,  be 
considered  as  a  party  to  a  compact  made  anterior  to  its  existence, 
yet,  as  the  creature  of  that  compact,  it  must  be  bound  by  it  to  its 
creators,  the  several  States  in  the  Union  and  the  citizens  thereof."  ^ 
If  by  this  no  more  were  meant  than  to  state  that  the  Federal 
government  cannot  lawfully  exercise  any  powers  except  those  con- 
ferred on  it  by  the  Constitution,  its  truth  could  not  admit  of  dis- 
pute. But  it  is  plain  that  something  more  was  in  the  author's 
mind.  At  the  same  time  that  he  admits  that  the  Federal  govern- 
ment could  not  be  a  party  to  the  compact  of  the  Constitution  "  in 
any  possible  view,"  he  still  seems  to  insist  upon  it  as  a  compact 
by  which  the  Federal  government  is  bound  to  the  several  States 
and  to  every  citizen ;  that  is,  that  it  has  entered  into  a  contract 
with  them  for  the  due  execution  of  its  duties. 

1  Mr.  Madison's  Letter,  North  American  Review,  October,  1830,  p.  538.  Mr.  Pat- 
erson  (afterwards  Mr.  Justice  Paterson),  in  the  convention  which  framed  the  Constitu- 
tion, held  the  doctrine  that,  under  the  confederation,  no  State  had  a  right  to  withdraw 
from  the  Union  without  the  consent  of  all.  "  The  confederation  (said  he)  is  in  the 
nature  of  a  compact;  and  can  any  State,  unless  by  the  consent  of  the  whole,  either  in 
politics  or  law,  withdraw  their  powers  ?  Let  it  be  said  by  Pennsylvania  and  the  other 
large  States,  that  they  for  the  sake  of  peace  assented  to  the  confederation ;  can  she  now 
resume  her  original  right  without  the  consent  of  the  donee  1  "  Yates's  Debates,  4 
Elliot's  Debates,  75.  Mr.  Dane  unequivocally  holds  the  same  language  in  respect  to 
the  Constitution.  "  It  is  clear  (says  he)  the  people  of  any  one  State  alone  never  can 
take  or  wit'idraw  power  from  the  United  States,  which  was  granted  to  it  by  all,  as  the 
people  of  all  the  States  can  do  rightfully  in  a  justifiable  revolution,  or  as  the  people  can 
do  in  the  manner  their  Constitution  prescribes."     Dane's  App.  §  10,  p.  21. 

The  ordinance  of  1787,  for  the  government  of  the  Northwestern  territory,  contains  (as 
we  have  seen)  certain  articles  declared  to  be  "  articles  oi' compact  "  ;  but  they  are  also  de- 
clared to  "  remain  forever  unalterable,  except  by  common  consent."  So  that  there  may 
be  a  compact,  and  yet  by  the  stipulations  neither  party  may  be  at  liberty  to  withdraw 
from  it,  or  absolve  itself  from  its  obligations.     Ante,  p.  269. 

'^  1  Tucker's  Black.  Coram.  169,  170.  »  1  Tucker's  Black.  Comm.  170. 


260  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  IH. 

§  368.  And  a  doctrine  of  a  like  nature,  viz.  that  the  Federal 
government  is  a  party  to  the  compact,  seems  to  have  been  gravely 
entertained  on  other  solemn  occasions.^  The  difficulty  of  main- 
taining it,  however,  seems  absolutely  insuperable.  The  Federal 
government  is  the  result  of  the  Constitution,  or  (if  the  phrase  is 
deemed  by  any  person  more  appropriate)  the  creature  of  the  com- 
pact. How,  then,  can  it  be  a  party  to  that  compact  to  which  it 
owes  its  own  existence  ?  ^  How  can  it  be  said  that  it  has  entered 
into  a  contract,  when  at  the  time  it  had  no  capacity  to  contract, 
and  was  not  even  in  esse?  If  any  provision  was  made  for  the 
general  government's  becoming  a  party  and  entering  into  a  com- 
pact after  it  was  brought  into  existence,  where  is  that  provision  to 
be  found  ?  It  is  not  to  be  found  in  the  Constitution  itself.  Are  we 
at  liberty  to  imply  such  a  provision,  attaching  to  no  power  given  in 
the  Constitution  ?  This  would  be  to  push  the  doctrine  of  implication 
to  an  extent  truly  alarming ;  to  draw  inferences,  not  from  what 
is,  but  from  what  is  not  stated  in  the  instrument.  But  if  any 
such  implication  could  exist,  when  did  the  general  government 
signify  its  assent  to  become  such  a  party  ?  When  did  the  people 
authorize  it  to  do  so  ?  ^  Could  the  government  do  so  without  the 
express  authority  of  the  people  ?  These  are  questions  which  are 
more  easily  asked  than  answered. 

§  369.  In  short,  the  difficulties  attendant  upon  all  the  various 
theories  under  consideration,  which  treat  the  Constitution  of  the 
United  States  as  a  compact,  either  between  the  several  States,  or 
between  the  people  of  the  several  States,  or  between  the  whole 
people  of  the  United  States  and  the  people  of  the  several  States, 
or  between  each  citizen  of  all  the  States  and  all  other  citizens, 
are,  if  not  absolutely  insuperable,  so  serious,  and  so  wholly  founded 
upon  mere  implication,  that  it  is  matter  of  surprise  that  they 
should  have  been  so  extensively  adopted  and  so  zealously  propa- 
gated. These  theories,  too,  seem  mainly  urged  with  a  view  to 
draw  conclusions  which  are  at  war  with  the  known  powers  and 
reasonable  objects  of  the  Constitution ;  and  which,  if  successful, 
would  reduce  the  government  to  a  mere  confederation.  They  are 
objectionable,  then,  in  every  way :  first,  because  they  are  not  jus- 

1  Debate  in  the  Senate,  in  1830,  on  Mr.  Foot's  resolution,  4  Elliot's  Debates,  315  to 
331. 

2  Webster's  Speeches,  429  ;  4  Elliot's  Debates,  324. 
8  Dane's  App.  §  32,  p.  41  ;  Id.  §  38,  p.  46. 


CH.III.]  NATURE  OF  THE  CONSTITUTION.  561 

tified  by  the  language  of  the  Constitution ;  secondly,  because  they 
have  a  tendency  to  impair,  and  indeed  to  destroy,  its  express 
powers  and  objects ;  and,  thirdly,  because  they  involve  conse- 
quences which,  at  the  will  of  a  single  State,  may  overthrow  the 
Constitution  itself.  One  of  the  fundamental  rules  in  the  exposi- 
tion of  every  instrument  is,  so  to  construe  its  terms,  if  possible, 
as  not  to  make  them  the  source  of  their  own  destruction  or  to 
make  them  utterly  void  and  nugatory.  And  if  this  be  generally 
true,  with  how  much  more  force  does  the  rule  apply  to  a  constitu- 
tion of  government  framed  for  the  general  good  and  designed 
for  perpetuity  ?  Surely,  if  any  implications  are  to  be  made  beyond 
its  terms,  they  are  implications  to  preserve,  and  not  to  destroy  it.^ 
§  370.  The  cardinal  conclusion  for  which  this  doctrine  of  a 
compact  has  been,  with  so  much  ingenuity  and  ability,  forced  into 
the  language  of  the  Constitution  (for  the  language  nowhere  alludes 
to  it),  is  avowedly  to  establish  that,  in  construing  the  Constitution, 
there  is  no  common  umpire;  but  that  each  State,  nay,  each  de- 
partment of  the  government  of  each  State,  is  the  supreme  judge 
for  itself  of  the  powers  and  rights  and  duties  arising  under  that 
instrument.^  Thus,  it  has  been  solemnly  asserted  on  more  than 
one  occasion,  by  some  of  the  State  legislatures,  that  there  is  no 
common  arbiter  or  tribunal  authorized  to  decide  in  the  last  re- 
sort upon  the  powers  and  the  interpretation  of  the  Constitution. 
And  the  doctrine  has  been  recently  revived  with  extraordinary 
zeal  and  vindicated  with  uncommon  vigor.^    A  majority  of  the 

1  The  following  strong  language  is  extracted  from  Instructions  given  to  some  repre- 
sentatives of  the  State  of  Virginia  by  their  constituents  in  1787,  with  reference  to  the 
confederation  :  "  Government  without  coercion  is  a  proposition  at  once  so  absurd  and 
self-contradictory  that  the  idea  creates  a  confusion  of  the  understanding.  It  is  form 
without  substance ;  at  best  a  body  without  a  soul.  If  men  would  act  right,  govern- 
ments of  all  kinds  would  be  useless.  If  states  or  nations,  who  are  but  assemblages  of 
men,  would  do  right,  there  would  be  no  wars  or  disorders  in  the  univer^.  Bad  as  indi- 
viduals are,  states  are  worse.  Clothe  men  with  public  authority,  and  almost  universally 
they  consider  themselves  as  liberated  from  the  obligations  of  moral  rectitude,  because 
they  are  no  longer  amenable  to  justice."     1  Amer.  Mus.  290. 

2  Madison's  Virginia  Report,  January,  1800,  p.  6,  7,  8,  9 ;  Webster's  Speeches,  407 
to  409,  410,  411,  419  to  421. 

^  The  legislature  of  Virginia,  in  1829,  resolved  "  that  there  is  no  common  arbiter  to 
construe  the  Constitution  of  the  United  States ;  the  Constitution  being  a  federative  com- 
pact between  sovereign  States,  each  State  has  a  right  to  construe  the  compact  for  itself." 
Georgia  and  South  Carolina  have  recently  maintained  the  same  doctrine ;  and  it  has 
been  asserted  in  the  Senate  of  the  United  States  with  an  uncommon  display  of  elo- 
quence and  pertinacity.  8  Dane's  Abridg.  ch.  187,  art.  20,  §  13,  p.  589,  &c.,  591  ; 
Dane's  App.  52  to  59,  67  to  72  ;  3  American  Annual  Register,  Local  Hist.  131.    It  is 


262  CONSTITUTION  OF  THE   UNITED  STATES.  [BOOK  III. 

States,  however,  have  never  assented  to  this  doctrine  ;  and  it  has 
been,  at  different  times,  resisted  by  the  legislatures  of  several  of 
the  States,  in  the  most  formal  declarations.^ 

§  371.  But  if  it  were  admitted  that  the  Constitution  is  a  com- 
pact, the  conclusion  that  there  is  no  common  arbiter  would  neither 
be  a  necessary  nor  natural  conclusion  from  that  fact  standing 
alone.  To  decide  upon  the  point,  it  would  still  behoove  us  to  ex- 
amine the  very  terms  of  the  Constitution  and  the  delegation  of 
powers  under  it.  It  would  be  perfectly  competent  even  for  con- 
federated States  to  agree  upon  and  delegate  authority  to  construe 
the  compact  to  a  common  arbiter.  The  people  of  the  United 
States  had  an  unquestionable  right  to  confide  this  power  to  the 
government  of  the  United  States  or  to  any  department  thereof,  if 
they  chose  so  to  do.  The  question  is  whether  they  have  done  it. 
If  they  have,  it  becomes  obligatory  and  binding  upon  all  the 
States. 

§  372.  It  is  not,  then,  by  artificial  reasoning  founded  upon 
theory,  but  upon  a  careful  survey  of  the  language  of  the  Constitu- 
tion itself,  that  we  are  to  interpret  its  powers  and  its  obligations. 

not  a  little  remarkable  that,  in  1810,  the  legislature  of  Virginia  thought  very  differently, 
and  then  deemed  the  Supreme  Court  a  fit  and  impartial  tribunal.  North  American 
Eeview,  October,  1830,  p.  509,  512 ;  6  Wheat.  R.  320,  358.  Pennsylvania  at  the  same 
time,  though  she  did  not  deny  the  court  to  be,  under  the  Constitution,  the  appropriate 
tribunal,  was  desirous  of  substituting  some  other  arbiter.  North  American  Review,  id. 
507,  508.  The  recent  resolutions  of  her  own  legislature  (in  March,  1831)  show  that 
she  now  approves  of  the  Supreme  Court  as  the  true  and  common  arbiter.  One  of  the 
expositions  of  the  doctrine  is,  that  if  a  single  State  deny  a  power  to  exist  under  the 
Constitution,  that  power  is  to  be  deemed  defunct,  unless  three  fourths  of  the  States  shall 
afterwards  reinstate  that  power  by  an  amendment  to  the  Constitution.  4  Elliot's  De- 
bates, 321.  What,  then,  is  to  be  done,  where  ten  States  resolve  that  a  power  exists, 
and  one  that  it  does  not  exist  ?  See  Mr.  Vice-President  Calhoun's  Letter  of  28th 
August,  1832,  to  Governor  Hamilton. 

1  Massachusetts  openly  opposed  it  in  the  resolutions  of  her  legislature  of  the  12th  of 
February,  1799,  and  declared  "that  the  decision  of  all  cases  in  law  and  equity  arising 
under  the  Constitution  of  the  United  States,  and  the  construction  of  all  laws  made  in 
pursuance  thereof,  are  exclusively  vested  by  the  people  in  the  judicial  courts  of  the 
United  States."  Dane's  App.  58.  Six  other  States,  at  that  time,  seem  to  have  come 
to  the 'same  result.  North  American  Review,  October,  1830,  p.  500.  And  on  other 
occasions  a  larger  number  have  concurred  on  the  same  point.  Dane's  App.  67  ;  Id.  52 
to  59.  Similar  resolutions  have  been  passed  by  the  legislatures  of  Delaware  and  Con- 
necticut in  1831,  and  by  some  other  States.  How  is  it  possible  for  a  moment  to  recon- 
cile the  notion  that  each  State  is  the  supreme  judge  for  itself  of  the  construction  of  the 
Constitution  with  the  very  first  resolution  of  the  convention  which  formed  the  Consti- 
tution :  "  Resolved,  &c.,  that  a  national  government  ought  to  be  established,  consisting  of 
a  supreme,  legislative,  judiciary,  and  executive "  %  Journals  of  Convention,  83 ;  4 
Elliot's  Deb.  59. 


CH.  III.]  NATURE  OF  THE  CONSTITUTION.  263 

We  are  to  treat  it,  as  it  purports  on  its  face  to  be,  as  a  Constitu- 
tion of  government;  and  we  are  to  reject  all  other  appellations 
and  definitions  of  it,  such  as  that  it  is  a  compact,  especially  as 
they  may  mislead  us  into  false  constructions  and  glosses,  and  can 
have  no  tendency  to  instruct  us  in  its  real  objects.^ 

1  [Besides  the  writers  referred  to  by  Mr.  Justice  Story,  whoever  desires  to  make  him- 
self familiar  with  the  views  opposed  to  those  here  presented  will  be  likely  to  consult 
Construction  Construed  and  Constitutions  Vindicated,  by  John  Taylor  of  Caroline  (1820), 
New  Views  of  the  Constitution  of  the  United  States,  by  the  same  writer  (1823),  the  Review 
of  these  Commentaries  by  Judge  A.  P.  Upshur  (Petersburg,  Va.,  1840),  Professor 
Henry  St.  George  Tucker's  Lectures  on  Constitutional  Law  (Richmond,  1843),  and  the 
Constitutional  View  of  the  War  between  the  States,  by  Alexander  H.  Stephens,  1867-70.] 


264  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  m. 


CHAPTER    lY. 

WHO    IS    FINAL  JUDGE    OR  INTERPRETER   IN    CONSTITUTIONAL  CONTRO- 
VERSIES. 

§  373.  The  consideration  of  the  question  whether  the  Constitu- 
tion has  made  provision  for  any  common  arbiter  to  construe  its 
powers  and  obligations  would  properly  find  a  place  in  the  analysis 
of  the  different  clauses  of  that  instrument.  But,  as  it  is  imme- 
diately connected  with  the  subject  before  us,  it  seems  expedient  in 
this  place  to  give  it  a  deliberate  attention. ^ 

§  374.  In  order  to  clear  the  question  of  all  minor  points,  which 
might  embarrass  us  in  the  discussion,  it  is  necessary  to  suggest  a 
few  preliminary  remarks.  The  Constitution,  contemplating  the 
grant  of  limited  powers,  and  distributing  them  among  various 
functionaries,  —  and  the  State  governments,  with  their  function- 
aries, being  also  clothed  with  limited  powers,  subordinate  to  those 

1  The  point  was  very  strongly  argued,  and  much  considered,  in  the  case  of  Cohens  v. 
Virginia,  in  the  Supreme  Court  in  1821  (6  "Wheat.  R.  264).  The  whole  argument,  as 
well  as  the  judgment,  deserves  an  attentive  reading.  The  result  to  which  the  argument 
against  the  existence  of  a  common  arbiter  leads  is  presented  in  a  very  forcible  manner 
by  Mr.  Chief  Justice  Marshall,  in  pages  376,  377. 

"  The  questions  presented  to  the  court  by  the  two  first  points  made  at  the  bar  are  of 
great  magnitude,  and  may  be  truly  said  vitally  to  affect  the  Union.  They  exclude  the 
inquiry  whether  the  Constitution  and  laws  of  the  United  States  have  been  violated  by 
the  judgment,  which  the  plaintiffs  in  error  seek  to  review ;  and  maintain  that,  admitting 
such  violation,  it  is  not  in  the  power  of  the  government  to  apply  a  corrective.  They 
maintain  that  the  nation  does  not  possess  a  department  capable  of  restraining  peacea- 
bly, and  by  authority  of  law,  any  attempts  which  may  be  made  by  a  part  against  the 
legitimate  powers  of  the  whole ;  and  that  the  government  is  reduced  to  the  alternative  of 
submitting  to  such  attempts  or  of  resisting  them  by  force.  They  maintain  that  the  Con- 
stitution of  the  United  States  has  provided  no  tribunal  for  the  final  construction  of  itself, 
or  of  the  laws  or  treaties  of  the  nation ;  but  that  this  power  may  be  exercised  in  the 
last  resort  by  the  courts  of  every  State  in  the  Union.  That  the  Constitution,  laws,  and 
treaties  may  receive  as  many  constructions  as  there  are  States ;  and  that  this  is  not  a 
mischief,  or,  if  a  mischief,  is  irremediable.  These  abstract  propositions  are  to  be  deter- 
mined ;  for  he  who  demands  decision  without  permitting  inquiry  affirms  that  the  de- 
cision he  asks  does  not  depend  on  inquiry. 

"  If  such  be  the  Constitution,  it  is  the  duty  of  this  court  to  bow  with  respectful  sub- 
mission to  its  provisions.  If  such  be  not  the  Constitution,  it  is  equally  the  duty  of  this 
court  to  say  so  ;  and  to  perform  that  task  which  the  American  people  have  assigned  to 
the  judicial  department." 


CH.  IV.]  FINAL  INTERPRETER.  265 

granted  to  the  general  government,  —  whenever  any  question 
arises  as  to  the  exercise  of  any  power  by  any  of  these  function- 
aries under  the  State  or  Federal  government,  it  is  of  necessity  that 
such  functionaries  must,  in  the  first  instance,  decide  upon  the  con- 
stitutionality of  the  exercise  of  such  power.^  It  may  arise  in  the 
course  of  the  discharge  of  the  functions  of  any  one,  or  of  all,  of 
the  great  departments  of  government,  the  executive,  the  legisla- 
tive, and  the  judicial.  The  officers  of  each  of  these  departments 
are  equally  bound  by  their  oaths  of  office  to  support  the  Constitu- 
tion of  the  United  States,  and  are  therefore  conscientiously  bound 
to  abstain  from  all  acts  which  are  inconsistent  with  it.  Whenever, 
therefore,  they  are  required  to  act  in  a  case  not  hitherto  settled  by 
any  proper  authority,  these  functionaries  must,  in  the  first  instance, 
decide  each  for  himself,  whether,  consistently  with  the  Constitu- 
tion, the  act  can  be  done.  If,  for  instance,  the  President  is  re- 
quired to  do  any  act,  he  is  not  only  authorized  but  required  to 
decide  for  himself,  whether,  consistently  with  his  constitutional 
duties,  he  can  do  the  ac.t^    So,  if  a  proposition  be  before  Congress, 

1  See  the  Federalist,  No.  33. 

2  Mr.  Jefferson  carries  his  doctrine  much  further,  and  holds  that  each  department  of 
government  has  an  exclusive  right,  independent  of  the  judiciary,  to  decide  for  itself  as 
to  the  true  construction  of  the  Constitution.  "  My  construction,"  says  he,  "  is  very 
different  from  that  you  quote.  It  is,  that  each  department  of  the  government  is  truly 
independent  of  the  others,  and  has  an  equal  right  to  decide  for  itself  what  is  the  mean- 
ing of  the  Constitution  in  the  laws  submitted  to  its  action,  and  especially  when  it  is  to 
act  ultimately  and  without  appeal."  And  he  proceeds  to  give  examples  in  which  he 
disregarded,  when  President,  the  decisions  of  the  judiciary,  and  refers  to  the  alien  and 
sedition  laws,  and  the  case  of  Marhury  v.  Madison  (1  Cranch,  137).  4  Jefferson's  Cor- 
respondence, 316,  317.     See  also  4  Jefferson's  Corresp.  27  ;  Id.  75  ;  Id.  372,  374. 

[In  Attorney- General  v.  Barstow,  4  Wis.  .587,  the  view  of  Mr.  Jefferson  was  pressed 
still  further.  The  facts  were  that  Barstow,  the  governor  of  the  State,  was  defeated  by 
the  people  in  a  canvass  for  re-election.  Certain  spurious  election  returns  were,  never- 
theless, placed  on  file  with  the  State  Board  of  Canvassers,  which,  together  with  the  gen- 
uine returns,  gave  him  an  apparent  majority  over  the  opposing  candidate.  Thereupon 
he  declined  to  surrender  the  office  at  the  end  of  the  term,  and  on  quo  warranto  against 
him  in  the  Supreme  Court  denied  the  authority  of  that  court  to  consider  and  decide  upon 
the  title  to  the  office.     His  position,  as  stated  by  his  counsel,  was  as  follows  :  — 

"1.  The  three  departments  of  the  State  government,  the  legislative,  the  executive, 
and  judicial,  are  equal,  coordinate,  and  independent  of  each  other  ;  and  that  each  de- 
partment must  be  and  is  the  ultimate  judge  of  the  election  and  qualification  of  its  own 
member  or  members,  subject  only  to  impeachment  and  appeal  to  the  people. 

"  2.  That  this  court  must  take  judicial  notice  of  who  is  governor  of  the  State, 
when  he  was  inaugurated,  the  genuineness  of  his  signature,  &c. ;  and  therefore  cannot 
hear  argument  or  evidence  upon  the  subject.  That  who  is  rightfully  entitled  to  the 
oflS.ce  of  governor  can  in  no  case  become  a  judicial  question,  and 

"  3.  That  the  Constitution  provides  no  means  for  ousting  a  saccessful  usurper  of 


266  CONSTITUTION  OF  THE   UNITED  STATES.  [BOOK  III. 

every  member  of  the  legislative  body  is  bound  to  examine  and 
decide  for  himself  whether  the  bill  or  resolution  is  within  the  con- 
stitutional reach  of  the  legislative  powers  confided  to  Congress. 
And  in  many  cases  the  decisions  of  the  executive  and  legislative 
departments,  thus  made,  become  final  and  conclusive,  being  from 
their  very  nature  and  character  incapable  of  revision.  Thus,  in 
measures  exclusively  of  a  political,  legislative,  or  executive  char- 
acter, it  is  plain  that  as  the  supreme  authority,  as  to  these  ques- 
tions, belongs  to  the  legislative  and  executive  departments,  they 
cannot  be  re-examined  elsewhere.  Thus,  Congress  having  the 
power  to  declare  war,  to  levy  taxes,  to  appropriate  money,  to  regu- 
late intercourse  and  commerce  with  foreign  nations,  their  mode  of 
executing  these  powers  can  never  become  the  subject  of  re-exam- 
ination in  any  other  tribunal.  So  the  power  to  make  treaties  being 
confided  to  the  President  and  Senate,  when  a  treaty  is  properly 
ratified  it  becomes  the  law  of  the  land,  and  no  other  tribunal  can 
gainsay  its  stipulations.  Yet  cases  may  readily  be  imagined  in 
which  a  tax  may  be  laid  or  a  treaty  made,  upon  motives  and 
grounds  wholly  beside  the  intention  of  the  Constitution.^  The 
remedy,  however,  in  such  cases  is  solely  by  an  appeal  to  the  peo- 
ple at  the  elections,  or  by  the  salutary  power  of  amendment  pro- 
vided by  the  Constitution  itself.^ 

§  375.  But  where  the  question  is  of  a  different  nature,  and 
capable  of  judicial  inquiry  and  decision,  there  it  admits  of  a  very 
different  consideration.  The  decision  then  made,  whether  in  favor 
or  against  the  constitutionality  of  the  act,  by  the  State  or  by  the 
national  authority,  by  the  legislature  or  by  the  executive,  being 
capable,  in  its  own  nature,  of  being  brought  to  the  test  of  the  Con- 
stitution, is  subject  to  judicial  revision.     It  is  in  such  cases,  as  we 

either  of  the  three  departments  of  the  government ;  that  that  power  rests  with  the  peo- 
ple, to  be  exercised  by  them  when  they  think  the  exigency  requires  it." 

The  startling  doctrine  so  broadly  stated  received  so  little  countenance  from  the  court 
to  which  it  was  addressed  as  scarcely  to  be  treated  with  the  courtesy  of  a  discussion.] 

1  See  4  Elliot's  Debates,  315  to  320. 

2  The  Federalist,  No.  44.  Mr.  Madison,  in  the  Virginia  Keport  of  January,  1800, 
has  gone  into  a  consideration  of  this  point,  and  very  properly  suggested  that  there  may 
be  infractions  of  the  Constitution  not  within  the  reach  of  the  judicial  power,  or  capable 
of  remedial  redress  through  the  instrumentality  of  courts  of  law.  But  we  cannot 
agree  with  him,  that  in  such  cases  each  State  may  take  the  construction  of  the  Constitu- 
tion into  its  own  hands,  and  decide  for  itself  in  the  last  resort ;  much  less  that  in  a  case 
of  judicial  cognizance  the  decision  is  not  binding  on  the  States.  See  Keport,  p.  6,  7, 
8,  9. 


CH.  IV.]  FINAL  INTERPRETER.  267 

conceive,  that  there  is  a  final  and  common  arbiter  provided  by  the 
Constitution  itself,  to  whose  decisions  all  others  are  subordinate  ; 
and  that  arbiter  is  the  supreme  judicial  authority  of  the  courts  of 
the  Union.^ 

1  Dane's  App.  §  44,  45,  p.  52  to  59.  It  affords  me  very  sincere  gratification  to  quote 
the  following  passage  from  the  learned  Commentaries  of  Mr.  Chancellor  Kent,  than 
whom  very  few  judges  in  our  country  are  more  profoundly  versed  in  constitutional  law. 
After  enumerating  the  judicial  powers  in  the  Constitution,  he  proceeds  to  observe :  "  The 
propriety  and  fitness  of  these  judicial  powers  seem  to  result,  as  a  necessary  consequence, 
from  the  union  of  these  States  in  one  national  government,  and  they  may  be  considered 
as  requisite  to  its  existence.  The  judicial  power  in  every  government  must  be  coexten- 
sive with  the  power  of  legislation.  Were 'there  no  power  to  interpret,  pronoimce,  and 
execute  the  law,  the  government  would  either  perish  through  its  own  imbecility,  as  was 
the  case  with  the  old  confederation,  or  other  powers  must  be  assumed  by  the  legislative 
body  to  the  destruction  of  liberty."     1  Kent's  Comm.  (2d  ed.  p.  296,)  Lect.  14,  277. 

[Our  author  speaks  here  of  a  decision  for  or  against  the  constitutionality  of  a  partic- 
ular act.  Upon  such  a  question,  as  he  truly  remarks,  the  final  arbiter  is  "  the  supreme  ju- 
dicial authority  of  the  courts  of  the  Union."  The  final  decision  of  that  authority  is  binding 
upon  all  the  people,  all  the  States,  and  all  the  departments  of  the  general  government. 

But  as  between  these  several  departments,  there  are  and  must  be  bounds  to  this  con- 
clusiveness of  adjudication.  The  question  that  is  judicial  to-day  may  be  political  to- 
morrow. Judicial  questions  the  courts  decide ;  political  are  addressed  to  the  wisdom 
of  the  legislature.  To-day  the  question  may  be  whether  an  existing  act  is  constitutional. 
That  is  purely  judicial.  To-morrow  the  act  may  have  expired,  and  the  question  may 
be  whether  it  should  be  re-enacted.  That  question  is  political.  Suppose  there  be  no 
other  objection  to  its  re-enactment  than  doubts  of  its  constitutionality,  are  legislators 
bound  to  defer  to  the  judgment  of  the  court  in  the  exercise  of  the  legislative  function, 
and  therefore  to  re-enact  the  law,  though  in  their  own  view  it  may  be  a  clear  and  dan- 
gerous infraction  of  the  Constitution  ?  This  is  a  question  quite  aside  from  that  here 
discussed  by  our  author. 

As  illustrating  this  question  a  noted  instance  may  be  referred  to.  Previous  to  1 832 
the  Supreme  Court  of  the  United  States  had  in  a  deliberate  decision  declared  that  Con- 
gress had  the  power  to  charter  a  Bank  of  the  United  States.  But  in  1832  the  question 
of  re-charter  arising,  and  a  bill  having  passed  the  two  houses  for  the  purpose,  President 
Jackson  vetoed  it     In  the  course  of  his  veto  message  he  says  :  — 

"  It  is  maintained  by  the  advocates  of  the  bank,  that  its  constitutionality,  in  all  its 
features,  ought  to  be  considered  as  settled  by  precedent  and  by  the  decision  of  the  Su- 
preme Court.  To  this  conclusion  I  cannot  assent.  Mere  precedent  is  a  dangerous 
source  of  authority,  and  should  not  be  regarded  as  deciding  questions  of  constitutional 
power,  except  where  the  acquiescence  of  the  people  and  the  States  can  be  considered  as 
well  settled.  So  far  from  this  being  the  case  on  this  subject,  an  argument  against  the 
bank  might  be  based  on  precedent.  One  Congress,  in  1791,  decided  in  favor  of  a  bank  ; 
another,  in  1811,  decided  against  it.  One  Congress,  in  1815,  decided  against  a  bank  ; 
another,  in  1816,  decided  in  its  favor.  Prior  to  the  present  Congress,  therefore,  the 
precedents  drawn  from  that  source  were  equal.  If  we  resort  to  the  States,  the  expres- 
sions of  legislative,  executive,  and  judicial  opinions  against  the  bank  have  been  probably 
to  those  in  its  favor  as  four  to  one.  There  is  nothing  in  precedent,  therefore,  which,  if 
its  authority  were  admitted,  ought  to  weigh  in  favor  of  the  act  before  me. 

"  If  the  opinion  of  the  Supreme  Court  covered  the  whole  ground  of  this  act,  it  ought 
not  to  control  the  co-ordinate  authorities  of  this  government.     The  Congress,  the  exec- 


268  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  III. 

§  376.   Let  us  examine  the  grounds  on  wliicli  this  doctrine  is 
maintained.    The  Constitution  declares,  (Art.  6,)  that  "  This  Con- 

utive,  and  the  court  must  each  for  itself  be  guided  by  its  own  opinion  of  the  Constitu- 
tion. Each  public  officer,  who  takes  an  oath  to  support  the  Constitution,  swears  that 
he  will  support  it  as  he  understands  it,  and  not  as  it  is  understood  by  others.  It  is  as 
much  the  duty  of  the  House  of  Representatives,  of  the  Senate,  and  of  the  President,  to 
decide  upon  the  constitutionality  of  any  bill  or  resolution  which  may  be  presented  to 
them  for  passage  or  approval,  as  it  is  of  the  supreme  judges  when  it  may  be  brought 
before  them  for  judicial  decision.  The  opinion  of  the  judges  has  no  more  authority 
over  Congress  than  the  opinion  of  Congress  has  over  the  judges  ;  and,  on  that  point, 
the  President  is  independent  of  both. 

"  The  authority  of  the  Supreme  Court  must  not,  therefore,  be  permitted  to  control 
the  Congress  or  the  executive,  when  acting  in  their  legislative  capacities,  but  to  have 
only  such  influence  as  the  force  of  their  reasoning  may  deserve." 

Again  :  during  the  administration  of  President  Buchanan  the  Supreme  Court,  in  a 
case  before  it  involving  a  question  of  personal  liberty,  denied  the  power  of  Congress  to 
exclude  slavery  from  the  Territories.  This  opinion  became  of  vital  interest  and  impor- 
tance in  the  Presidential  election  which  followed,  and  President  Lincoln  thus  referred  to 
it  in  his  inaugural :  "  I  do  not  forget  the  position  assumed  by  some,  that  constitutional 
questions  are  to  be  decided  by  the  Supreme  Court ;  nor  do  I  deny  that  such  decisions 
must  be  binding,  in  any  case,  upon  the  parties  to  a  suit,  as  to  the  object  of  that  suit,  while 
they  are  also  entitled  to  very  high  respect  and  consideration  in  all  parallel  cases  by  all 
other  departments  of  the  government.  And  while  it  is  obviously  possible  that  such  decis- 
ion may  be  erroneous  in  any  given  case,  still  the  evil  effect  following  it,  being  limited  to 
that  particular  case,  with  the  chance  that  it  may  be  overruled,  and  never  become  a 
precedent  for  other  cases,  can  better  be  borne  than  could  the  evils  of  a  different  prac- 
tice. At  the  same  time  the  candid  citizen  must  confess  that  if  the  policy  of  the  govern- 
ment upon  vital  questions,  affecting  the  whole  people,  is  to  be  irrevocably  fixed  by 
decisions  of  the  Supreme  Court,  the  instant  they  are  made  in  ordinary  litigation  be- 
tween parties  in  personal  actions,  the  people  will  have  ceased  to  be  their  own  rulers, 
having  to  that  extent  practically  resigned  their  government  into  the  hands  of  that  emi- 
nent tribunal. 

"Nor  is  there  in  this  view  any  assault  upon  the  court  or  the  judges.  It  is  a  duty 
from  which  they  may  not  shrink,  to  decide  cases  properly  brought  before  them,  and  it  is 
no  fault  of  theirs  if  others  seek  to  turn  their  decisions  to  political  purposes.  One  sec- 
tion of  our  country  believes  slavery  is  right  and  ought  to  be  extended,  while  the 
other  believes  it  is  wrong  and  ought  not  to  be  extended.  This  is  the  only  substantial 
dispute.  The  fugitive-slave  clause  of  the  Constitution,  and  the  law  for  the  suppression 
of  the  foreign  slave-trade,  are  each  as  well  enforced,  perhaps,  as  any  law  can  ever  be  in  a 
community  where  the  moral  sense  of  the  people  imperfectly  supports  the  law  itself.  The 
great  body  of  the  people  abide  by  the  dry  legal  obligation  in  both  cases,  and  a  few 
break  over  in  each.  This  I  think  cannot  be  perfectly  cured ;  and  it  would  be  worse  in 
both  cases  after  the  separation  of  the  sections  than  before.  The  foreign  slave-trade,  now 
imperfectly  suppressed,  would  be  ultimately  revived  without  restriction  in  one  section  ; 
while  fugitive  slaves,  now  only  partially  surrendered,  would  not  be  surrendered  at  all, 
by  the  other." 

Such  were  the  views  of  Presidents  Jackson  and  Lincoln.  The  first  were  strongly 
condemned  by  able  statesmen,  under  the  lead  of  Mr.  Clay  and  Mr.  Webster,  and  as 
earnestly  defended.  The  second  have  also  been  subjected  to  sharp  criticism,  notably  at 
the  hands  of  Professor  Samuel  Tyler  in  his  Memoir  of  Chief  Justice  Taney.    We  con- 


CH.  IV.]  FINAL  INTERPRETER.  269 

stitution  and  the  laws  of  the  United  States,  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties^  &c.,  shall  be  the  supreme  law 
of  the  land."  It  also  declares,  (Art.  3,)  that  "  the  judicial  power 
shall  extend  to  all  cases  in  law  and  equity  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made,  and 
which  shall  be  made,  under  their  authority."  It  further  declares, 
(Art.  3,)  that  the  judicial  power  of  the  United  States  "  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Con- 
gress may,  from  time  to  time,  ordain  and  establish."  Here,  then, 
we  have  express  and  determinate  provisions  upon  the  very  subject. 
Nothing  is  imperfect,  and  nothing  is  left  to  implication.  The 
Constitution  is  the  supreme  law ;  the  judicial  power  extends  to  all 
cases  arising  in  law  and  equity  under  it ;  and  the  courts  of  the 
United  States  are,  and,  in  the  last  resort,  the  Supreme  Court  of 
the  United  States  is,  to  be  vested  with  this  judicial  power.  No 
man  can  doubt  or  deny  that  the  power  to  construe  the  Constitu- 
tion is  a  judicial  power.^  The  power  to  construe  a  treaty  is  clearly 
so,  when  the  case  arises  in  judgment  in  a  controversy  between  in- 
dividuals.2  The  like  principle  must  apply  where  the  meaning  of 
the  Constitution  arises  in  a  judicial  controversy ;  for  it  is  an  appro- 
priate function  of  the  judiciary  to  construe  laws.^  If,  then,  a  case 
under  the  Constitution  does  arise,  if  it  is  capable  of  judicial  ex- 
amination and  decision,  we  see  that  the  very  tribunal  is  appointed 
to  make  the  decision.  The  only  point  left  open  for  controversy  is, 
whether  such  decision,  when  made,  is  conclusive  and  binding  upon 
the  States  and  the  people  of  the  States.  The  reasons  why  it  should 
be  so  deemed  will  now  be  submitted. 

§  377.   In  the  first  place,  the  judicial  power  of  the  United  States 
rightfully  extending  to  all  such  cases,  its  judgment  becomes  ipso 

tent  ourselves  here  with  a  single  remark  :  The  boundary  between  legislative  and  judicial 
power  is  in  general  clear.  To  declare  what  the  law  is,  is  the  province  of  the  latter ;  to 
declare  what  it  shall  he,  within  the  limits  of  the  Constitution,  pertains  to  the  former. 
And  when  the  question  is,  what  are  those  limits,  it  is  the  duty  of  every  party  called 
upon  to  exercise  an  independent  authority,  carefully  and  conscientiously,  on  a  full  con- 
sideration of  all  the  light  he  can  obtain,  to  satisfy  himself  that  he  does  not  overstep 
the  bounds  which  the  people,  in  delegating  their  authority  to  him,  have  set  to  his  power. 
That  is  a  safe,  proper,  and  just  rule  for  every  citizen,  every  officer,  and  every  tribunal 
to  apply  wherever  there  is  a  discretion  to  exercise.] 

1  4  Dane's  Abridg.  ch.  187,  art.  20,  §  15,  p.  590 ;  Dane's  App.  §  42,  p.  49,  50;  §  44, 
p.  52,  53 ;  1  Wilson's  Lectures,  461,  462,  463. 

2  See  Address  of  Congress,  Feb.  1787  ;  Journals  of  Congress,  p.  33;  Kawle  on  the 
Constitution,  App.  2,  p.  316. 

3  Bacon's  Abridgment,  Statute  H. 


270  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  HI. 

facto  conclusive  between  the  parties  before  it,  in  respect  to  the 
points  decided,  unless  some  mode  be  pointed  out  by  the  Constitu- 
tion in  which  that  judgment  may  be  revised.  No  such  mode  is 
pointed  out.  Congress  is  vested  with  ample  authority  to  provide 
for  the  exercise  by  the  Supreme  Court  of  appellate  jurisdiction 
from  the  decisions  of  all  inferior  tribunals,  whether  State  or  na- 
tional, in  cases  within  the  purview  of  the  judicial  power  of  the 
United  States ;  but  no  mode  is  provided  by  which  any  superior 
tribunal  can  re-examine  what  the  Supreme  Court  has  itself  de- 
cided. Ours  is  emphatically  a  government  of  laws  and  not  of 
men  ;  and  judicial  decisions  of  the  highest  tribunal,  by  the  known 
course  of  the  common  law,  are  considered  as  establishing  the  true 
construction  of  the  laws  which  are  brought  into  controversy  before 
it.  The  case  is  not  alone  considered  as  decided  and  settled,  but 
the  principles  of  the  decision  are  held,  as  precedents  and  author- 
ity, to  bind  future  cases  of  the  same  nature.  This  is  the  constant 
practice  under  our  whole  system  of  jurisprudence.  Our  ancestors 
brought  it  with  them  when  they  first  emigrated  to  this  country, 
and  it  is,  and  always  has  been,  considered  as  the  great  security  of 
our  rights,  our  liberties,  and  our  property.  It  is  on  this  account 
that  our  law  is  justly  deemed  certain,  and  founded  in  permanent 
principles,  and  not  dependent  upon  the  caprice  or  will  of  particu- 
lar judges.  A  more  alarming  doctrine  could  not  be  promulgated 
by  any  American  court,  than  that  it  was  at  liberty  to  disregard  all 
former  rules  and  decisions,  and  to  decide  for  itself,  without  refer- 
ence to  the  settled  course  of  antecedent  principles. 

§  378.  This  known  course  of  proceeding,  this  settled  habit  of 
thinking,  this  conclusive  effect  of  judicial  adjudications,  was  in  the 
full  view  of  the  framers  of  the  Constitution.  It  was  required  and 
enforced  in  every  State  in  the  Union,  and  a  departure  from  it 
would  have  been  justly  deemed  an  approach  to  tyranny  and  arbi- 
trary power,  to  the  exercise  of  mere  discretion,  and  to  the  aban- 
donment of  all  the  just  checks  upon  judicial  authority.  It  would 
seem  impossible,  then,  to  presume,  if  the  people  intended  to  intro- 
duce a  new  rule  in  respect  to  the  decisions  of  the  Supreme  Court, 
and  to  limit  the  nature  and  operations  of  their  judgments  in  a 
manner  wholly  unknown  to  the  common  law  and  to  our  existing 
jurisprudence,  that  some  indication  of  that  intention  should  not  be 
apparent  on  the  face  of  the  Constitution.  We  find  (Art.  4)  that 
the  Constitution  has  declared,  that  full  faith  and  credit  shall  be 


CH.  IV.]  FINAL  INTERPRETER.  271 

given  in  each  State  to  the  judicial  proceedings  of  every  other 
State.  But  no  like  provision  has  been  made  in  respect  to  the 
judgments  of  the  courts  of  the  United  States,  because  they  were 
plainly  supposed  to  be  of  paramount  and  absolute  obligation 
throughout  all  the  States.  If  the  judgments  of  the  Supreme 
Court  upon  constitutional  questions  are  conclusive  and  binding 
upon  the  citizens  at  large,  must  they  not  be  equally  conclusive 
upon  the  States  ?  If  the  States  are  parties  to  that  instrument,  are 
not  the  people  of  the  States  also  parties  ? 

§  379.  It  has  been  said  "  that  however  true  it  may  be  that  the 
judicial  department  is,  in  all  questions  submitted  to  it  by  the  forms 
of  the  Constitution,  to  decide  in  the  last  resort,  this  resort  must 
necessarily  be  deemed  the  last  in  relation  to  the  other  departments 
of  the  government^  not  in  relation  to  the  rights  of  the  parties  to  the 
constitutional  compact^  from  which  the  judicial,  as  well  as  the  other 
departments,  hold  their  delegated  trusts.  On  any  other  hypothe- 
sis, the  delegation  of  judicial  power  would  annul  the  authority 
delegating  it ;  and  the  concurrence  of  this  department  with  the 
others  in  usurped  powers  might  subvert  forever,  and  beyond  the 
possible  reach  of  any  rightful  remedy,  the  very  Constitution  which 
all  were  instituted  to  preserve."  ^  Now  it  is  certainly  possible 
that  all  the  departments  of  a  government  may  conspire  to  subvert 
the  constitution  of  that  government  by  which  they  are  created. 
But  if  they  should  so  conspire,  there  would  still  remain  an  ade- 
quate remedy  to  redress  the  evil.  In  the  first  place,  the  people, 
by  the  exercise  of  the  elective  franchise,  can  easily  check  and 
remedy  any  dangerous,  palpable,  and  deliberate  infraction  of  the 
Constitution  in  two  of  the  great  departments  of  government ;  and 
in  the  third  department  they  can  remove  the  judges,  by  impeach- 
ment, for  any  corrupt  conspiracies.  Besides  these  ordinary  reme- 
dies, there  is  a  still  more  extensive  one  embodied  in  the  form  of 
the  Constitution,  by  the  power  of  amending  it,  which  is  always  in 
the  power  of  three  fourths  of  the  States.  It  is  a  supposition  not 
to  be  endured  for  a  moment,  that  three  fourths  of  the  States 
would  conspire  in  any  deliberate,  dangerous,  and  palpable  breach 
of  the  Constitution.  And  if  the  judicial  department  alone  should 
attempt  any  usurpation.  Congress,  in  its  legislative  capacity,  has 
full  power  to  abrogate  the  injurious  effects  of  such  a  decision. 
Practically  speaking,  therefore,  there  can  be  very  little  danger  of 
any  such  usurpation  or  deliberate  breach. 

1  Madison's  Virginia  Report,  Jan.  1800,  p.  8,  9. 


272  CONSTITUTION   OF  THE  UNITED  STATES.  [BOOK  lU. 

§  380.  But  it  is  always  a  doubtful  mode  of  reasoning  to  argue, 
from  the  possible  abuse  of  powers,  that  they  do  not  exist.^  Let 
us  look  for  a  moment  at  the  consequences  which  flow  from  the 
doctrine  on  the  other  side.  There  are  now  twenty-four  States  in 
the  Union,  and  each  has,  in  its  sovereign  capacity,  a  right  to  decide 
for  itself  in  the  last  resort  what  is  the  true  construction  of  the 
Constitution,  what  are  its  powers,  and  what  are  the  obligations 
founded  on  it.  We  may,  then,  have,  in  the  free  exercise  of  that 
right,  twenty-four  honest  but  different  expositions  of  every  power 
in  that  Constitution,  and  of  every  obligation  involved  in  it.  What 
one  State  may  deny,  another  may  assert ;  what  one  may  assert  at 
one  time,  it  may  deny  at  another  time.  This  is  not  mere  supposi- 
tion. It  has,  in  point  of  fact,  taken  place.  There  never  has  been 
a  single  constitutional  question  agitated,  where  different  States,  if 
they  have  expressed  any  opinion,  have  not  expressed  different 
opinions ;  and  there  have  been,  and  from  the  fluctuating  nature 
of  legislative  bodies  it  may  be  supposed  that  there  will  continue 
to  be,  cases  in  which  the  same  State  will  at  different  times  hold 
different  opinions  on  the  same  question.  Massachusetts  at  one 
time  thought  the  embargo  of  1807  unconstitutional ;  at  another  a 
majority,  from  the  change  of  parties,  was  as  decidedly  the  other 
way.  Virginia,  in  1810,  thought  that  the  Supreme  Court  was  the 
common  arbiter ;  in  1829  she  thought  differently .^  What,  then,  is 
to  become  of  the  Constitution,  if  its  powers  are  thus  perpetually  to 
be  the  subject  of  debate  and  controversy  ?  What  exposition  is  to 
be  allowed  to  be  of  authority  ?  Is  the  exposition  of  one  State 
to  be  of  authority  there,  and  the  reverse  to  be  of  authority  in  a 
neighboring  State  entertaining  an  opposite  exposition  ?  Then 
there  would  be  at  no  time  in  the  United  States  the  same  Constitu- 
tion in  operation  over  the  whole  people.  Is  a  power  which  is 
doubted  or  denied  by  a  single  State  to  be  suspended  either 
wholly  or  in  that  State  ?  Then  the  Constitution  is  practically 
gone,  as  a  uniform  system,  or,  indeed,  as  any  system  at  all,  at  the 
pleasure  of  any  State.  If  the  power  to  nullify  the  Constitution 
exists  in  a  single  State,  it  may  rightfully  exercise  it  at  its  pleasure. 
Would  not  this  be  a  far  more  dangerous  and  mischievous  power 
than  a  power  granted  by  all  the  States  to  the  judiciary  to  construe 
the  Constitution  ?     Would   not  a  tribunal,  appointed   under  the 

1  See  Anderson  v.  Dunn,  6  Wheaton's  R.  204,  23l 

2  Dane's  App.  §  44,  45,  p.  52  to  59,  §  54,  p.  66 ;  4  Elliot's  Debates,  338,  339. 


CH.  IV.]  FINAL  INTERPRETER.  273 

authority  of  all,  be  more  safe  than  twenty-four  tribunals,  acting  at 
their  own  pleasure,  and  upon  no  common  principles  and  co-opera- 
tion ?  Suppose  Congress  should  declare  war ;  shall  one  State 
have  power  to  suspend  it  ?  Suppose  Congress  should  make  peace  ; 
shall  one  State  have  power  to  involve  the  whole  country  in  war  ? 
Suppose  the  President  and  Senate  should  make  a  treaty  ;  shall  one 
State  declare  it  a  nullity,  or  subject  the  whole  country  to  reprisals 
for  refusing  to  obey  it  ?  Yet,  if  every  State  may  for  itself  judge 
of  its  obligations  under  the  Constitution,  it  may  disobey  a  partic- 
ular law  or  treaty,  because  it  may  deem  it  an  unconstitutional 
exercise  of  power,  although  every  other  State  shall  concur  in  a 
contrary  opinion.  Suppose  Congress  should  lay  a  tax  upon  im- 
ports burdensome  to  a  particular  State,  or  for  purposes  which 
such  State  deems  unconstitutional,  and  yet  all  the  other  States  are 
in  its  favor  ;  is  the  law  laying  the  tax  to  become  a  nullity  ?  That 
would  be  to  allow  one  State  to  withdraw  a  power  from  the  Union 
which  was  given  by  the  people  of  all  the  States.  That  would  be 
to  make  the  general  government  the  servant  of  twenty-four  mas- 
ters of  different  wills  and  different  purposes,  and  yet  bound  to 
obey  them  all.^ 

§  381.  The  argument,  therefore,  arising  from  a  possibility  of  an 
abuse  of  power,  is,  to  say  the  least  of  it,  quite  as  strong  the  other 
way.  The  Constitution  is  in  quite  as  perilous  a  state  from  the 
power  of  overthrowing  it  lodged  in  every  State  in  the  Union,  as  it 
can  be  by  its  being  lodged  in  any  department  of  the  Federal  gov- 
ernment. There  is  this  difference,  however,  in  the  cases,  that  if 
there  be  Federal  usurpation,  it  may  be  checked  by  the  people  of 
all  the  States  in  a  constitutional  way.  If  there  be  usurpation  by 
a  single  State,  it  is,  upon  the  theory  we  are  considering,  irreme- 
diable. Other  difficulties,  however,  attend  the  reasoning  we  are 
considering.  When  it  is  said  that  the  decision  of  the  Supreme 
Court  in  the  last  resort  is  obligatory  and  final  "  in  relation  to  the 
authorities  of  the  other  departments  of  the  government,"  is  it 
meant  of  the  Federal  government  only,  or  of  the  States  also  ?  If 
of  the  former  only,  then  the  Constitution  is  no  longer  the  supreme 
law  of  the  land,  although  all  the  State  functionaries  are  bound  by 
an  oath  to  support  it.  If  of  the  latter  also,  then  it  is  obligatory 
upon  the  State  legislatures,  executives,  and  judiciaries.  It  binds 
them  ;  and  yet  it  does  not  bind  the  people  of  the  States,  or  the 

1  Webster's  Speeches,  420 ;  4  Elliot's  Debates,  339. 
VOL.  I.  18 


274  CONSTITUTION  OF  THE  UNITED  STATES.      [BOOK  UI. 

States  in  their  sovereign  capacity.  The  States  may  maintain  one 
construction  of  it,  and  the  functionaries  of  the  State  are  bound  by 
another.  If,  on  the  other  hand,  the  State  functionaries  are  to 
follow  the  construction  of  the  S^ate  in  opposition  to  the  con- 
struction of  the  Supreme  Court,  then  the  Constitution,  as  actually 
administered  by  the  different  functionaries,  is  different ;  and  the 
duties  required  of  them  may  be  opposite  and  in  collision  with 
each  other.  If  such  a  state  of  things  is  the  just  result  of  the 
reasoning,  may  it  not  justly  be  suspected  that  the  reasoning  itself 
is  unsound  ? 

§  382.  Again,  it  is  a  part  of  this  argument  that  the  judicial 
interpretation  is  not  binding  "  in  relation  to  the  rights  of  the  par- 
ties to  the  constitutional  compact."  "  On  any  other  hypothesis 
the  delegation  of  judicial  power  would  annul  the  authority  dele 
gating  it."  Who,  then,  are  the  parties  to  this  contract  ?  Who 
did  delegate  the  judicial  power  ?  Let  the  instrument  answer  for 
itself.  The  people  of  the  United  States  are  the  parties  to  the 
Constitution.  The  people  of  the  United  States  delegated  the 
judicial  power.  It  was  not  a  delegation  by  the  people  of  one 
State,  but  by  the  people  of  all  the  States.  Why,  then,  is  not  a 
judicial  decision  binding  in  each  State,  until  all  who  delegated  the 
power  in  some  constitutional  manner  concur  in  annulling  or  over- 
ruling the  decision  ?  Where  shall  we  find  the  clause  which  gives 
the  power  to  each  State  to  construe  the  Constitution  for  all,  and 
thus  of  itself  to  supersede  in  its  own  favor  the  construction  of  all 
the  rest  ?  Would  not  this  be  justly  deemed  a  delegation  of  judi- 
cial power  which  would  annul  the  authority  delegating  it  ?  ^  Since 
the  whole  people  of  the  United  States  have  concurred  in  estab- 
lishing the  Constitution,  it  would  seem  most  consonant  with  rea- 
son to  presume,  in  the  absence  of  all  contrary  stipulations,  that 
they  did  not  mean  that  its  obligatory  force  should  depend  upon 
the  dictate  or  opinion  of  any  single  State.  Even  under  the  confed- 
eration (as  has  been  already  stated)  it  was  unanimously  resolved 
by  Congress  that  "  as  State  legislatures  are  not  competent  to  the 
making  of  such  compacts  or  treaties  [with  foreign  states],  so 
neither  are  they  competent  in  that  capacity  authoritatively  to  decide 

^  There  is  vast  force  in  the  reasoning  of  Mr.  "Webster  on  this  subject,  in  his  great 
speech  on  Mr.  Foot's  resolutions  in  the  Senate,  in  1830,  which  well  deserves  the  atten- 
tion of  every  statesman  and  jurist.  See  4  Elliot's  Debates,  338,  339,  343,  344,  and 
Webster's  Speeches,  p.  407,  408,  418,  419,  420 ;  Id.  430,  431,  432. 


CH.  IV.]  FINAL  INTERPRETER.  275 

on  or  ascertain  the  construction  and  sense  of  them."  And  the 
reasoning  by  which  this  opinion  is  supported  seems  absolutely 
unanswerable.^  If  this  was  true  under  such  an  instrument,  and 
that  construction  was  avowed  before  the  whole  American  people 
and  brought  home  to  the  knowledge  of  the  State  legislatures,  how 
can  we  avoid  the  inference  that  under  the  Cons,titution,  where  an 
express  judicial  power  in  cases  arising  under  the  Constitution  was 
provided  for,  the  people  must  have  understood  and  intended  that 
the  States  should  have  no  right  to  question  or  control  such  judi- 
cial interpretation  ? 

§  383.  In  the  next  place,  as  the  judicial  power  extends  to  all 
cases  arising  under  the  Constitution,  and  that  Constitution  is  de- 
clared to  be  the  supreme  law,  that  supremacy  would  naturally  be 
construed  to  extend  not  only  over  the  citizens,  but  over  the  States.^ 
This,  however,  is  not  left  to  implication,  for  it  is  declared  to  be 
the  supreme  law  of  the  land, "  anything  in  the  Constitution  or  laws 
of  any  State  to  the  contrary  notwithstanding."  The  people  of  any 
State  cannot,  then,  by  any  alteration  of  their  State  constitution, 
destroy  or  impair  that  supremacy.  How,  then,  can  they  do  it  in 
any  other  less  direct  manner  ?  Now,  it  is  the  proper  function  of 
the  judicial  department  to  interpret  laws,  and  by  the  very  terms  of 
the  Constitution  to  interpret  the  supreme  law.  Its  interpretation, 
then,  becomes  obligatory  and  conclusive  upon  all  the  departments 
of  the  Federal  government,  and  upon  the  whole  people,  so  far  as 
their  rights  and  duties  are  derived  from  or  affected  by  that  Consti- 
tution. If,  then,  all  the  departments  of  the  national  government 
may  rightfully  exercise  all  the  powers  which  the  judicial  department 
has,  by  its  interpretation,  declared  to  be  granted  by  the  Constitution, 
and  are  prohibited  from  exercising  those  which  are  thus  declared 
not  to  be  granted  by  it,  would  it  not  be  a  solecism  to  hold,  not- 
withstanding, that  such  rightful  exercise  should  not  be  deemed  the 
supreme  law  of  the  land,  and  such  prohibited  powers  should  still  be 
deemed  granted  ?  It  would  seem  repugnant  to  the  first  notions  of 
justice,  that  in  respect  to  the  same  instrument  of  government  dif- 
ferent powers  and  duties  and  obligations  should  arise,  and  differ- 
ent rules  should  prevail,  at  the  same  time,  among  the  governed, 
from  a  right  of  interpreting  the  same  words  (manifestly  used  in 

1  Journals  of  Congress,  April  13,  1787,  p.  32,  &c.  Rawle  on  the  Constitution,  App. 
2,  p.  316,  &c. 

2  The  Federalist,  No.  33. 


276  CONSTITUTION  OF  THE  UNITED  STATES.      [BOOK  III. 

one  sense  only)  in  different,  nay,  in  opposite  senses.  If  there  ever 
was  a  case,  in  which  uniformity  of  interpretation  might  well  be 
deemed  a  necessary  postulate,  it  would  seem  to  be  that  of  a 
fundamental  law  of  a  government.  It  might  otherwise  follow 
that  the  same  individual,  as  a  magistrate,  might  be  bound  by  one 
rule,  and  in  his  private  capacity  by  another,  at  the  very  same 
moment. 

§  384.  There  would  be  neither  wisdom  nor  policy  in  such  a  doc- 
trine ;  and  it  would  deliver  over  the  Constitution  to  interminable 
doubts,  founded  upon  the  fluctuating  opinions  and  characters  of 
those  who  should  from  time  to  time  be  called  to  administer  it. 
Such  a  Constitution  could  in  no  just  sense  be  deemed  a  law,  much 
less  a  supreme  or  fundamental  law.  It  would  have  none  of  the 
certainty  or  universality  which  are  the  proper  attributes  of  such  a 
sovereign  rule.  It  would  entail  upon  us  all  the  miserable  servi- 
tude which  has  been  deprecated  as  the  result  of  vague  and  uncer- 
tain jurisprudence.  Misera  est  servitus,  uhijus  est  vagum  aut  incer- 
turn.  It  would  subject  us  to  constant  discussions,  and  perhaps  to 
civil  broils,  from  the  perpetually  recurring  conflicts  upon  consti- 
tutional questions.  On  the  other  hand,  the  worst  that  could  hap- 
pen from  a  wrong  decision  of  the  judicial  department  would  be 
that  it  might  require  the  interposition  of  Congress,  or,  in  the  last 
resort,  of  the  amendatory  power  of  the  States,  to  redress  the 
grievance. 

§  385.  We  find  the  power  to  construe  the  Constitution  expressly 
confided  to  the  judicial  department,  without  any  limitation  or 
qualification  as  to  its  conclusiveness.  Who,  then,  is  at  liberty,  by 
general  implications,  not  from  the  terms  of  the  instrument,  but 
from  mere  theory  and  assumed  reservations  of  sovereign  right,  to 
insert  such  a  limitation  or  qualification  ?  We  find,  that  to  produce 
uniformity  of  interpretation,  and  to  preserve  the  Constitution  as 
a  perpetual  bond  of  union,  a  supreme  arbiter  or  authority  of  con- 
struing is,  if  not  absolutely  indispensable,  at  least  of  the  highest 
possible  practical  utility  and  importance.  Who,  then,  is  at  liberty 
to  reason  down  the  terms  of  the  Constitution,  so  as  to  exclude 
their  natural  force  and  operation  ? 

§  386.  We  find  that  it  is  the  known  course  of  the  judicial  de- 
partment of  the  several  States  to  decide  in  the  last  resort  upon  all 
constitutional  questions  arising  in  judgment ;  and  that  this  has 
always  been  maintained  as  a  rightful  exercise  of  authority,  and 


CH.  IV.]  FINAL  INTERPRETER.  277 

conclusive  upon  the  whole  State.^  As  such,  it  has  been  constantly- 
approved  by  the  people,  and  never  withdrawn  from  the  courts  by 
any  amendment  of  their  constitutions,  when  the  people  have  been, 
called  to  revise  them.  We  find  that  the  people  of  the  several 
States  have  constantly  relied  upon  this  last  judicial  appeal  as  the 
bulwark  of  their  State  rights  and  liberties ;  and  that  it  is  in  per- 
fect consonance  with  the  whole  structure  of  the  jurisprudence  of 
the  common  law.  Under  such  circumstances  is  it  not  most  natural 
to  presume  that  the  same  rule  was  intended  to  be  applied  to  the 
Constitution  of  the  United  States  ?  And  when  we  find  that  the 
judicial  department  of  the  United  States  is  actually  intrusted  with 
a  like  power,  is  it  not  an  irresistible  presumption  that  it  had  the 
same  object,  and  was  to  have  the  same  universally  conclusive 
effect  ?  Even  under  the  confederation,  an  instrument  framed  with 
infinitely  more  jealousy  and  deference  for  State  rights,  the  judg- 
ments of  the  judicial  department  appointed  to  decide  controversies 
between  States  were  declared  to  be  final  and  conclusive ;  and  the 
appellate  power  in  other  cases  was  held  to  overrule  all  State  deci- 
sions and  State  legislation. ^ 

§  387.  If,  then,  reasoning  from  the  terms  of  the  Constitution 
and  the  known  principles  of  our  jurisprudence,  the  appropriate 
conclusion  is  that  the  judicial  department  of  i^xe  United  States  is, 
in  the  last  resort,  the  final  expositor  of  the  Constitution  as  to  all 
questions  of  a  judicial  nature,  let  us  see,  in  the  next  place,  ho\r 
far  this  reasoning  acquires  confirmation  from  the  past  history  of 
the  Constitution  and  the  practice  under  it. 

§  388.  That  this  view  of  the  Constitution  was  taken  by  its 
framers  and  friends,  and  was  submitted  to  the  people  before  its 
adoption,  is  positively  certain.  The  Federalist ^  says,  "Under 
the  national  government,  treaties  and  articles  of  treaties,  as  well 
as  the  law  of  nations,  will  always  be  expounded  in  one  sense 
and  executed  in  the  same  manner  ;  whereas  adjudications  on  the 
same  points  and  questions  in  thirteen  States,  or  three  or  four  con- 
federacies, will  not  always  accord  or  be  consistent ;  and  that  as 
well  from  the  variety  of  independent  courts  and  judges  appointed 
by  different  and  independent  governments  as  from  the  different 

1  2  Elliot's  Debates,  248,  328,  329,  395  ;  Grimkd's  Speech  in  1828,  p.  25,  &c.;  Dane's 
App.  §  44,  45,  p.  52  to  59  ;  Id.  §  48,  p.  62. 

2  Dane's  App.  §  52,  p.  65 ;  Penhallow  v.  Doane,  3  Dall.  54 ;  Journals  of  Congress, 
1779,  Vol.  5,  p.  86  to  90 ;  4  Cranch,  2. 

8  The  Federalist,  No.  3. 


278  CONSTITUTION   OF  THE  UNITED  STATES.  [BOOK  III. 

local  laws,  which  may  affect  and  influence  them.  The  wisdom  of 
the  convention  in  committing  such  questions  to  the  jurisdiction 
and  judgment  of  courts  appointed  hy,  and  responsible  only  to,  one 
national  government,  cannot  be  too  much  commended."  Again, 
referring  to  the  objection  taken,  that  the  government  was  national, 
and  not  a  confederacy  of  sovereign  States,  and  after  stating  that 
the  jurisdiction  of  the  national  government  extended  to  certain 
enumerated  objects  only,  and  left  the  residue  to  the  several  States, 
it  proceeds  to  say :  ^  "It  is  true,  that  in  controversies  between  the 
two  jurisdictions  (State  and  national)  the  tribunal  which  is  ulti- 
mately to  decide  is  to  be  established  under  the  general  government. 
But  this  does  not  change  the  principle  of  the  case.  The  decision 
is  to  be  impartially  made  according  to  the  rules  of  the  Constitution, 
and  all  the  usual  and  most  effectual  precautions  are  taken  to  secure 
this  impartiality.  Some  such  tribunal  is  clearly  essential  to  pre- 
vent an  appeal  to  the  sword  and  a  dissolution  of  the  compact. 
And  that  it  ought  to  be  established  under  the  general  rather  than 
under  the  local  governments,  or,  to  speak  more  properly,  that  it 
could  be  safely  established  under  the  first  alone,  is  a  position  not 
likely  to  be  combated."  ^ 

§  389.  The  subject  is  still  more  elaborately  considered  in 
another  number,^  wiiich  treats  of  the  judicial  department  in  rela- 
tion to  the  extent  of  its  powers.  It  is  there  said,  that  there  ought 
always  to  be  a  constitutional  method  of  giving  efficacy  to  consti- 
tutional provisions  ;  that  if  there  are  such  things  as  political  axioms, 
the  propriety  of  the  judicial  department  of  a  government  being  co- 
extensive with  its  legislature  maybe  ranked  among  the  number;* 
that  the  mere  necessity  of  uniformity  in  the  interpretation  of  the 
national  law  decides  the  question  ;  that  thirteen  independent  courts 
of  final  jurisdiction  over  the  same  causes  is  a  hydra  of  government, 
from  which  nothing  but  contradiction  and  confusion  can  proceed ; 
that  controversies  between  the  nation  and  its  members  can  only  be 
properly  referred  to  the  national  tribunal ;  that  the  peace  of  the 
whole  ought  not  to  be  left  at  the  disposal  of  a  part ;  and  that  what- 
ever practices  may  have  a  tendency  to  disturb  the  harmony  of  the 
States  are  proper  objects  of  Federal  superintendence  and  control.^ 

1  The  Federalist,  No.  39.  2  gee  also  the  Federalist,  No.  33. 

8  The  Federalist,  No.  80. 

*  The  same  remarks  will  be  found  pressed  with  great  forpe  by  Mr.  Chief  Justice  Mar- 
shall, in  delivering  the  opinion  of  the  court  in  Cohens  v.  Virginia  (6  Wheat.  264,  384). 
p  In  the  Federalist,  No.  78  and  82,  the  same  course  of  reasoning  is  pursued,  and  the 


CH.  IV.]  FINAL  INTERPRETER.  279 

§  390.  The  same  doctrine  was  constantly  avowed  in  the  State 
conventions  called  to  ratify  the  Constitution.  With  some  persons 
it  formed  a  strong  objection  to  the  Constitution  ;  with  others  it  was 
deemed  vital  to  its  existence  and  value.^  So,  that  it  is  indisputa- 
ble, that  the  Constitution  was  adopted  under  a  full  knowledge  of 
this  exposition  of  its  grant  of  power  to  the  judicial  department.^ 

§  391.   This  is  not  all.     The  Constitution  has  now  been  in  full 

final  nature  of  the  appellate  jurisdiction  of  the  Supreme  Court  is  largely  insisted  on. 
In  the  convention  of  Connecticut,  Mr.  Ellsworth  (afterwards  Chief  Justice  of  the  United 
States)  used  the  following  language:  "This  Constitution  defines  the  extent  of  the 
powers  of  the  general  government.  If  the  general  legislature  should  at  any  time  over- 
leap their  limits,  the  judicial  department  is  the  constitutional  check.  If  the  United 
States  go  beyond  their  powers, — if  they  make  a  law  which  the  Constitution  does  not 
authorize,  it  is  void;  and  the  judicial  power,  the  national  judges,  who,  to  secure  their 
impartiality,  are  to  be  made  independent,  will  declare  it  void.  On  the  other  hand,  if 
the  States  go  beyond  their  limits,  —  if  they  make  a  law  which  is  a  usurpation  upon  the 
general  government,  the  law  is  void,  and  upright  and  independent  judges  will  declare 
it.  Still,  however,  if  the  United  States  and  the  individual  States  will  quarrel,  if  they 
want  to  fight,  they  may  do  it,  and  no  frame  of  government  can  possibly  prevent  it." 
In  the  debates  in  the  South  Carolina  legislature,  when  the  subject  of  calling  a  conven- 
tion to  ratify  or  reject  the  Constitution  was  before  them,  Mr.  Charles  Pinckney  (one  of 
the  members  of  the  convention)  avowed  the  doctrine  in  the  strongest  terms.  "  That 
a  supreme  Federal  jurisdiction  was  indispensable,"  said  he,  "  cannot  be  denied.  It  is 
equally  true,  that,  in  order  to  insure  the  administration  of  justice,  it  was  necessary  to 
give  all  the  powers,  original  as  well  as  appellate,  the  Constitution  has  enumerated. 
Without  it  we  could  not  expect  a  due  observance  of  treaties,  that  the  State  judiciaries 
would  confine  themselves  within  their  proper  sphere,  or  that  a  general  sense  of  justice 
would  pervade  the  Union,  &c.  That  to  insure  these,  extensive  authorities  were  neces- 
sary ;  particularly  so  were  they  in  a  tribunal,  constituted  as  this  is,  whose  duty  it  would 
be,  not  only  to  decide  all  national  questions  which  should  arise  within  the  Union,  but 
to  control  and  keep  the  State  judiciaries  within  their  proper  limits,  whenever  they 
should  attempt  to  interfere  with  the  power."  Debates  in  1778,  printed  by  A.  E.  Miller, 
1831,  Charleston,  p.  7. 

1  It  would  occupy  too  much  space  to  quote  the  passages  at  large.  Take,  for  in- 
stance, in  the  Virginia  debates,  Mr,  Madison's  remarks  :  "  It  may  be  a  misfortune, 
that  in  organizing  any  government  the  explication  of  its  authority  should  be  left  to  any 
of  its  co-ordinate  branches.  There  is  no  example  in  any  country  where  it  is  otherwise. 
There  is  no  new  policy  in  submitting  it  to  the  judiciary  of  the  United  States."  2  Elliot's 
Debates,  390.  See  also  Id.  380,  383,  395,  400,  404,  418.  See  also  North  Carolina  De- 
bates, 3  Elliot's  Debates,  125,  127,  128,  130,  133,  134,  139,  141,  142, 143;  Pennsylvania 
Debates,  3  Elliot's  Debates,  280,  313.  Mr.  Luther  Martin,  in  his  letter  to  the  Maryland 
Convention,  said :  "  By  the  third  article  the  judicial  power  is  vested  in  one  Supreme 
Court,  &c.  These  courts,  and  these  only,  will  have  a  right  to  decide  upon  the  laws  of 
the  United  States  and  all  questions  arising  upon  their  construction,  &c.  Whether,  there- 
fore, any  laws,  &c.,  of  Congress,  or  acts  of  its  President,  &c.,  are  contrary  to  or  war- 
ranted by  the  Constitution,  rests  only  with  the  judges,  who  are  appointed  by  Congress 
to  determine  ;  by  whose  determinations  every  State  is  bound."  3  Elliot's  Debates,  44,  45  ; 
Yates's  Minutes,  «S:c.     See  also  the  Federalist,  No.  78. 

2  See  Mr.  Pinckney's  Observations  cited  in  Grimke's  Speech  in  1828,  p.  86,  87.        ^ 


280  CONSTITUTION   OF   THE   UNITED   STATES.  [BOOK  III. 

operation  more  than  forty  years ;  and  during  this  period  the  Su- 
preme Court  has  constantly  exercised  this  power  of  final  interpre- 
tation in  relation  not  only  to  the  Constitution  and  laws  of  the 
Union,  but  in  relation  to  State  acts  and  State  constitutions  and 
laws,  so  far  as  they  affected  the  Constitution  and  laws  and  treaties 
of  the  United  States.^  Their  decisions  upon  these  gra've  questions 
have  never  been  repudiated  or  impaired  by  Congress.*-^  No  State 
has  ever  deliberately  or  forcibly  resisted  the  execution  of  the  judg- 
ments founded  upon  them  ;  and  the  highest  State  tribunals  have, 
with  scarcely  a  single  exception,  acquiesced  in  and,  in  most  in- 
stances, assisted  in  executing  them.'"^     During  the  same  period, 

1  Dane's  App.  §  44,  p.  53,  54,  55  ;  Grimke's  Speech,  1828,  p.  34  to  42.  [In  this  dis- 
cussion it  is  assumed,  of  course,  that  the  question  arising  under  the  Constitution  has  in 
some  form  become  the  subject  of  judicial  controversy,  so  as  to  be  brought  to  the  notice 
of  the  court  in  a  manner  to  demand  its  judgment.  The  court  does  not  sit  to  declare 
principles  of  law  except  as  they  arise  in  actual  litigation  ;  it  must  have  authority  under 
the  law  to  adjudicate  upon  some  subject-matter  in  regard  to  which  a  controversy  has 
arisen  before  it  is  warranted  in  laying  down  rules  which  are  to  govern  any  one  in  the 
construction  of  the  Constitution  or  of  any  other  law.  It  is,  therefore,  quite  possible 
that  questions  of  constitutional  law  may  for  a  long  period  never  be  brought  to  the  notice 
of  the  court  in  a  form  to  justify  the  expression  of  its  opinion  ;  and  a  practical  construc- 
tion may  come  to  be  settled  by  the  action  of  the  other  departments  of  the  government, 
which  it  would  be  difficult  and  mischievous  afterwards  to  disturb.  Indeed,  as  the  origi- 
nal jurisdiction  of  the  Supreme  Court  is  limited,  and  the  appellate  is  by  the  Constitution 
expressly  conferred,  "  with  such  exceptions  and  under  such  regulations  as  the  Congress 
shall  prescribe,"  (Ex  parte  Yerger,  8  Wal.  85;  The  Lucy,  Id.  307,)  it  has  been  found 
possible  by  that  body  in  a  case  in  which  a  decision  on  a  question  of  constitutional  power 
was  thought  not  desirable,  and  where  the  question  could  only  arise  on  appeal,  to  preclude 
a  decision  by  taking  away  the  appellate  jurisdiction.  This  was  done  in  McCardle's 
Case,  7  Wal.  506,  after  the  appeal  had  been  taken  ;  the  question  involved  being  the 
constitutionality  of  the  Reconstruction  Acts,  so  called.  Of  the  propriety  of  such  action 
we  say  nothing  here. 

The  Federal  courts  have  also  held  that  though  they  may  compel  the  performance  of 
mere  ministerial  duties  by  an  officer  of  the  United  States,  {Marhury  v.  Madison,  1 
Cranch,  137;  Kendall  v.  United  States,  12  Pet.  524;  United  States  v.  Guthrie,  17  How. 
284,)  yet  they  have  no  power  to  interfere,  to  require  the  performance  of  purely  political 
duties,  or  to  restrain  or  control  the  executive  in  the  exercise  of  discretionary  powers. 
The  allegation  that  he  is  proceeding  to  put  in  force  an  unconstitutional  law  does  not 
give  a  court  a  jurisdiction  to  interfere.  Mississippi  v.  Johnson,  4  Wal.  475.  The  laws 
in  question  here  were  also  the  Reconstruction  Acts.  See  also  Georgia  v.  Stanton,  6 
Wal.  51.] 

2  In  the  debates  in  the  first  Congress  organized  under  the  Constitution,  the  same  doc- 
trine was  openly  avowed,  as  indeed  it  has  constantly  been  by  the  majority  of  Congress  at 
all  subsequent  periods.    See  1  Lloyd's  Debates,  219  to  596  ;  2  Lloyd's  Debates,  284  to  327. 

8  Chief  Justice  M'Kean,  in  Commomoealth  v.  Cobbett,  (3  Dall.  473,)  seems  to  have 
adopted  a  modified  doctrine,  and  to  have  held  that  the  Supreme  Court  was  not  the  com- 
mon arbiter ;  but  if  not,  the  only  remedy  was,  not  by  a  State  deciding  for  itself,  as  in 
case  of  a  treaty  between  independent  governments,  but  by  a  constitutional  amendment 


CH.  IV.]  FINAL  INTERPRETER.  281 

eleven  States  have  been  admitted  into  the  Union,  under  a  full  per- 
suasion that  the  same  power  would  be  exerted  over  them.  Many 
of  the  States  have,  at  different  times  within  the  same  period,  been 
called  upon  to  consider  and  examine  the  grounds  on  which  the 
doctrine  lias  been  maintained,  at  the  solicitation  of  other  States, 
which  felt  tl*at  it  operated  injuriously,  or  might  operate  injuriously, 
upon  their  interests.  A  great  majority  of  the  States  which  have 
been  thus  called  upon  in  their  legislative  capacities  to  express 
opinions  have  maintained  the  correctness  of  the  doctrine,  and  the 
beneficial  effects  of  the  power,  as  a  bond  of  union,  in  terms  of  the 
most  unequivocal  nature.^  Whenever  any  amendment  has  been 
proposed  to  change  the  tribunal  and  substitute  another  common 
umpire  or  interpreter,  it  has  rarely  received  the  concurrence  of 
more  than  two  or  three  States,  and  has  been  uniformly  rejected  by 
a  great  majority,  either  silently  or  b}^  an  express  dissent. ^^^  And 
instances  have  occurred  in  which  the  legislature  of  the  same  State 
has,  at  different  times,  avowed  opposite  opinions,  approving  at  one 
time  what  it  had  denied,  or  at  least  questioned,  at  another.  So 
that  it  may  be  asserted  with  entire  confidence,  that  for  forty  years 
three  fourths  of  all  the  States  composing  the  Union  have  expressly 
assented  to  or  silently  approved  this  construction  of  the  Consti- 
tution, and  have  resisted  every  effort  to  restrict  or  alter  it.  A 
weight  of  public  opinion  among  the  people  for  such  a  period,  uni- 
formly thrown  into  one  scale  so  strongly  and  so  decisively,  in  the 
midst  of  all  the  extraordinary  changes  of  parties,  the  events  of 

by  the  States.  But  see,  on  the  other  hand,  the  opinion  of  Chief  Justice  Spencer,  in 
Andrews  v.  Montgomery,  19  Johns.  E.  164. 

1  Massachusetts,  in  her  Resolve  of  February  12,  1799,  (p.  57,)  in  answer  to  the  Res- 
olutions of  Virginia  of  1798,  declared  "that  the  decision  of  all  cases  in  law  and  equity, 
arising  under  the  Constitution  of  the  United  States,  and  the  construction  of  all  laws 
made  in  pursuance  thereof,  are  exclusively  vested  by  the  people  in  the  judicial  court  of 
the  United  States  "  ;  and  "  that  the  people  in  that  solemn  compact,  which  is  declared 
to  be  the  supreme  law  of  the  land,  have  not  constituted  the  State  legislatures  the  judges 
of  the  acts  or  measures  of  the  Federal  government,  but  have  confided  to  them  the  power 
of  proposing  such  amendments,"  &c. ;  and  "  that  by  this  construction  of  the  Constitu- 
tion an  amicable  and  dispassionate  remedy  is  pointed  out  for  any  evil  which  experi- 
ence may  prove  to  exist,  and  the  peace  and  prosperity  of  the  United  States  may  be 
preserved  without  interruption."  See  also  Dane's  App.  §  44,  p.  56 ;  Id.  80.  Mr. 
Webster's  Speech  in  the  Senate,  in  1830,  contains  an  admirable  exposition  of  the  same 
doctrines.  Webster's  Speeches,  410,  419,  420,  421.  In  June,  1821,  the  House  of  Rep- 
resentatives of  New  Hampshire  passed  certain  resolutions,  (172  yeas  to  9  nays,)  drawn 
up  (as  is  understood)  by  one  of  her  most  distinguished  statesmen,  asserting  the  same 
doctrines.  Delaware,  in  January,  1831,  and  Connecticut  and  Massachusetts  held  the 
same,  in  May,  1831. 

I 


282  CONSTITUTION  OF  THE  UNITED  STATES.  [BOOK  HI. 

peace  and  of  war,  and  the  trying  conflicts  of  public  policy  and  State 
interests,  is  perhaps  unexampled  in  the  history  of  all  other  free 
govern  men  ts.i  It  affords  as  satisfactory  a  testimony  in  favor  of 
the  just  and  safe  operation  of  the  system  as  can  well  be  imagined  ; 
and,  as  a  commentary  upon  the  Constitution  itself,  it  is  as  abso- 
lutely conclusive  as  any  ever  can  be,  and  affords  the  only  escape 
from  the  occurrence  of  civil  conflicts,  and  the  delivery  over  of  the 
subject  to  interminable  disputes.^ 

1  Virginia  and  Kentucky  denied  the  power  in  1798  and  1800  ;  Massachusetts,  Dela- 
ware, Rhode  Island,  New  York,  Connecticut,  New  Hampshire,  and  Vermont  disap- 
proved of  the  Virginia  Resolutions,  and  passed  counter  resolutions.  (North  American 
Review,  October,  1830,  p.  500.)  No  other  State  appears  to  have  approved  the  Virginia 
Resolutions.  (Ibid.)  In  1810  Pennsylvania  proposed  the  appointment  of  another  tri- 
bunal than  the  Supreme  Court  to  determine  disputes  between  the  general  and  State  gov- 
ernments. Virginia,  on  that  occasion,  affirmed  that  the  Supreme  Court  was  the  proper 
tribunal ;  and  in  that  opinion  New  Hampshire,  Vermont,  North  Carolina,  Maryland, 
Georgia,  Tennessee,  Kentucky,  and  New  Jersey  concurred ;  and  no  one  State  approved 
of  the  amendment.  (North  American  Review,  October,  1830,  p.  507  to  512;  Dane's 
App.  §  55,  p.  67  ;  6  Wheat.  R.  358,  note.)  Recently,  in  March,  1831,  Pennsylvania 
has  resolved  that  the  25th  section  of  the  judiciary  act  of  1789,  ch.  20,  which  gives  the 
Supreme  Court  appellate  jurisdiction  from  State  courts  on  constitutional  questions,  is 
authorized  by  the  Constitution  and  sanctioned  by  experience,  and  also  all  other  laws 
empowering  the  Federal  judiciary  to  maintain  the  supreme  laws. 

^  Upon  this  subject  the  speech  of  Mr.  Webster  in  the  Senate,  in  1 830,  presents  the 
whole  argument  in  a  very  condensed  and  powerful  form.  The  following  passage  is 
selected  as  peculiarly  appropriate :  "  The  people,  then,  sir,  erected  this  government. 
They  gave  it  a  Constitution,  and  in  that  Constitution  they  have  enumerated  the  powers 
which  they  bestow  on  it.  They  have  made  it  a  limited  government.  They  have  de- 
fined its  authority.  They  have  restrained  it  to  the  exercise  of  such  powers  as  are 
granted ;  and  all  others,  they  declare,  are  reserved  to  the  States  or  the  people.  But, 
sir,  they  have  not  stopped  here.  If  they  had,  they  would  have  accomplished  but  half 
their  work.  No  definition  can  be  so  clear  as  to  avoid  possibility  of  doubt ;  no  limita- 
tion so  precise  as  to  exclude  all  uncertainty.  Who,  then,  shall  construe  this  grant  of 
the  people  1  Who  shall  interpret  their  will,  where  it  may  be  supposed  they  have  left  it 
doubtful  1  With  whom  do  they  repose  this  ultimate  right  of  deciding  on  the  powers 
of  the  government  ?  Sir,  they  have  settled  all  this  in  the  fullest  manner.  They  have 
left  it,  with  the  government  itself,  in  its  appropriate  branches.  Sir,  the  very  chief  end, 
the  main  design,  for  which  the  whole  Constitution  was  framed  and  adopted,  was  to 
establish  a  government  that  should  not  be  obliged  to  act  through  State  agency,  or  de- 
pend on  State  opinion  and  State  discretion.  The  people  had  had  quite  enough  of  that 
kind  of  government  under  the  confederacy.  Under  that  system  the  legal  action, 
the  application  of  law  to  individuals,  belonged  exclusively  to  the  States.  Congress 
could  only  recommend,  —  their  acts  were  not  of  binding  force  till  the  States  had 
adopted  and  sanctioned  them.  Are  we  in  that  condition  still  ?  Are  we  yet  at  the 
mercy  of  State  discretion  and  State  construction  1  Sir,  if  we  are,  then  vain  will  be 
our  attempt  to  maintain  the  Constitution  under  which  we  sit. 

"  But,  sir,  the  people  have  wisely  provided,  in  the  Constitution  itself,  a  proper,  suita- 
ble mode  and  tribunal  for  settling  questions  of  constitutional  law.  There  are,  in  the 
Constitution,  grants  of  powers  to  Congress,  and  restrictions  on  these  powers.    There 


CH.  IV.]  FINAL  INTERPRETER.  283 

§  392.  Iq  this  review  of  the  power  of  the  judicial  department, 
upon  a  question  of  its  supremacy  in  the  interpretation  of  the  Con- 
are,  also,  prohibitions  on  the  States.  Some  authority  must,  therefore,  necessarily  exist* 
having  the  ultimate  jurisdiction  to  fix  and  ascertain  the  interpretation  of  these  grants, 
restrictions,  and  prohibitions.  The  Constitution  has  itself  pointed  out,  ordained,  and 
established  that  authority.  How  has  it  accomplished  this  great  and  essential  end  1  By 
declaring,  sir,  that  *  the  Constitution  and  the  laws  of  the  United  States  made  in  pursuance 
thereof  shall  be  the  supreme  law  of  the  land,  anything  in  the  Constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding.^ 

"  This,  sir,  was  the  first  great  step.  By  this  the  supremacy  of  the  Constitution  and 
laws  of  the  United  States  is  declared.  The  people  so  will  it.  No  State  law  is  to  be 
valid  which  comes  in  conflict  with  the  Constitution,  or  any  law  of  the  United  States 
passed  in  pursuance  of  it.  But  who  shall  decide  this  question  of  interference  ?  To 
whom  lies  the  last  appeal  ?  This,  sir,  the  Constitution  itself  decides,  also,  by  declaring 
*  that  the  judicial  power  shall  extend  to  all  cases  arising  under  the  Constitution  and  laws  of  the 
United  States.'  These  two  provisions,  sir,  cover  the  whole  ground.  They  are,  in 
truth,  the  keystone  of  the  arch.  With  these,  it  is  a  Constitution ;  without  them,  it  is  a 
confederacy.  In  pursuance  of  these  clear  and  express  provisions,  Congress  established 
at  its  very  first  session,  in  the  judicial  act,  a  mode  for  carrying  them  into  full  eflfect, 
and  for  bringing  all  questions  of  constitutional  power  to  the  final  decision  of  the 
Supren:e  Court.  It  then,  sir,  became  a  government.  It  then  had  the  means  of  self-pro- 
tection ;  and  but  for  this  it  would,  in  all  probability,  have  been  now  among  things 
which  are  past.  Having  constituted  the  government,  and  declared  its  powers,  the  peo- 
ple have  further  said  that  since  somebody  must  decide  on  the  extent  of  these  powers, 
the  government  shall  itself  decide ;  subject,  always,  like  other  popular  governments, 
to  its  responsibility  to  the  people.  And  now,  sir,  I  repeat,  how  is  it  that  a  State  legis- 
lature acquires  any  power  to  interfere  ?  Who,  or  what,  gives  them  the  right  to  say  to 
the  people,  *  We,  who  are  your  agents  and  servants  for  one  purpose,  will  undertake  to 
decide  that  your  other  agents  and  servants,  appointed  by  you  for  another  purpose,  have 
transcended  the  authority  you  gave  them '  1  The  reply  would  be,  I  think,  not  imperti- 
nent, *  Who  made  you  a  judge  over  another's  servants?  To  their  own  masters  they 
stand  or  fall.' 

"  Sir,  I  deny  this  power  of  State  legislatures  altogether.  It  cannot  stand  the  test  of 
examination.  Gentlemen  may  say  that,  in  an  extreme  case,  a  State  government  might 
protect  the  people  from  intolerable  oppression.  Sir,  in  such  a  case  the  people  might 
protect  themselves,  without  the  aid  of  the  State  governments.  Such  a  case  warrants 
revolution.  It  must  make,  when  it  comes,  a  law  for  itself.  A  nullifying  act  of  a  State 
legislature  cannot  alter  the  case,  nor  make  resistance  any  more  lawful.  In  maintaining 
these  sentiments,  sir,  I  am  but  asserting  the  rights  of  the  people.  I  state  what  they 
have  declared,  and  insist  on  their  right  to  declare  it.  They  have  chosen  to  repose  this 
power  in  the  general  government,  and  I  thirik  it  my  duty  to  support  it,  like  other  con- 
stitutional powers." 

See  also  1  Wilson's  Law  Lectures,  461,  462.  It  is  truly  surprising  that  Mr.  Vice- 
President  Calhoun,  in  his  letter  of  the  28th  of  August,  1832,  to  Governor  Hamilton, 
(published  while  the  present  work  was  passing  through  the  press,)  should  have  thought 
that  a  proposition  merely  offered  in  the  convention,  and  referred  to  a  committee  for 
their  consideration,  that  "  the  jurisdiction  of  the  Supreme  Court  shall  be  extended  to  all 
controversies  between  the  United  States  and  an  individual  State,  or  the  United  States 
and  the  citizens  of  an  individual  State,"  (Journal  of  Convention,  20th  Aug.  p.  265,) 
should,  in  connection  with  others  giving  a  negative  on  State  laws,  establish  the  conclu- 
sion that  the  convention  which  framed  the  Constitution  was  opposed  to  granting  the 


284  CONSTITUTION   OF  THE  UNITED   STATES.  [BOOK  III. 

stitution,  it  has  not  been  thought  necessary  to  rely  on  the  deliberate 
judgments  of  that  department  in  affirmance  of  it.  But  it  may  be 
proper  to  add,  that  the  judicial  department  has  not  only  constantly 
exercised  this  right  of  interpretation  in  the  last  resort',  but  its 
whole  course  of  reasonings  and  operations  has  proceeded  upon  the 
ground  that,  once  made,  the  interpretation  was  conclusive,  as  well 
upon  the  States  as  the  people. ^ 

power  to  the  general  government  in  any  form,  to  exercise  any  control  whatever  over  a 
State  by  force,  veto,  or  judicial  process,  or  in  any  other  form.  This  clause  for  confer- 
ring jurisdiction  on  the  Supreme  Court  in  controversies  between  the  United  States  and 
the  States,  must,  like  the  other  controversies  between  States  or  between  individuals, 
referred  to  the  judicial  power,  have  been  intended  to  apply  exclusively  to  suits  of  a  civil 
nature,  respecting  property,  debts,  contracts,  or  other  claims  by  the  United  States 
against  a  State,  and  not  to  the  decision  of  constitutional  questions  in  the  abstract.  At 
a  subsequent  period  of  the  convention,  the  judicial  power  was  expressly  extended  to  all 
cases  arising  under  the  Constitution,  laws,  and  treaties  of  the  United  States,  and  to  all 
controversies  to  which  the  United  States  should  be  a  party,  (Journal  of  Convention, 
27th  Aug.  p.  298,)  thus  covering  the  whole  ground  of  a  right  to  decide  constitutional 
questions  of  a  judicial  nature.  And  this,  as  the  Federalist  informs  us,  was  the  substi- 
tute for  a  negative  upon  State  laws,  and  the  only  one  which  was  deemed  safe  or  efficient. 
The  Federalist,  No.  80. 

1  Martin  v.  Hunter,  1  Wheat.  R.  304,  334,  &c.,  342,  348 ;  Cohens  v.  Tlie  State  of 
Virginia,  6  Wheat.  R.  264,  376,  377  to  392  ;  Id.  413  to  423  ;  Bank  of  Hamilton  v.  Dud- 
ley, 2  Peters,  R.  524;  Ware  v.  Hylton,  3  Dall.  199.  The  language  of  Mr.  Chief  Jus- 
tice Marshall,  in  delivering  the  opinion  of  the  court  in  Cohens  v.  Virginia,  (6  Wheat. 
384  to  390,)  presents  the  argument  in  favor  of  the  jurisdiction  of  the  judicial  depart- 
ment in  a  very  forcible  manner.  "  While  weighing  arguments  drawn  from  the  nature 
of  government  and  from  the  general  spirit  of  an  instrument,  and  urged  for  the  purpose 
of  narrowing  the  construction  which  the  words  of  that  instrument  seem  to  require,  it  is 
proper  to  place  in  the  opposite  scale  those  principles,  drawn  from  the  same  sources, 
which  go  to  sustain  the  words  in  their  full  operation  and  natural  import.  One  of  these, 
which  has  been  pressed  with  great  force  by  the  counsel  for  the  plaintiffs  in  error,  is,  that 
the  judicial  power  of  every  well-constituted  government  must  be  coextensive  with  the 
legislative,  and  must  be  capable  of  deciding  every  judicial  question  which  grows  out  of 
the  Constitution  and  laws. 

"  If  any  proposition  may  be  considered  as  a  political  axiom,  this,  we  think,  may  be  so 
considered.  In  reasoning  upon  it,  as  an  abstract  question,  there  would  probably  exist 
no  contrariety  of  opinion  respecting  it.  Every  argument  proving  the  necessity  of  the 
department  proves  also  the  propriety  of  giving  this  extent  to  it.  We  do  not  mean  to 
say  that  the  jurisdiction  of  the  courts  of  the  Union  should  be  construed  to  be  coextensive 
with  the  legislative,  merely  because  it  is  fit  that  it  should  be  so ;  but  we  mean  to  say, 
that  this  fitness  furnishes  an  argument  in  construing  the  Constitution  which  ought  never 
to  be  overlooked,  and  which  is  most  especially  entitled  to  consideration  when  we  are 
inquiring  whether  the  words  of  the  instrument,  which  purport  to  establish  this  princi- 
ple, shall  be  contracted  for  the  purpose  of  destroying  it. 

"  The  mischievous  consequences  of  the  construction,  contended  for  on  the  part  of 
Virginia,  are  also  entitled  to  great  consideration.  It  would  prostrate,  it  has  been  said, 
the  government  and  its  laws  at  the  feet  of  every  State  in  the  Union.  And  would  not  this 
be  its  effect  1    What  power  of  the  government  could  be  executed  by  its  own  means,  in 


CH.  IV.]  FINAL  INTERPRETER.  285 

§  393.   But  it  may  be  asked,  as  it  has  been  asked,  what  is  to  be 
the  remedy,  if  there  be  any  misconstruction  of  the  Constitution 

any  State  disposed  to  resist  its  execution  by  a  course  of  legislation  ?  The  laws  must  be 
executed  by  individuals  acting  within  the  several  States.  If  these  individuals  may  be 
exposed  to  penalties,  and  if  the  courts  of  the  Union  cannot  correct  the  judgments  by 
which  these  penalties  may  be  enforced,  the  course  of  the  government  may  be,  at  any 
time,  arrested  by  the  will  of  one  of  its  members.  Each  member  will  possess  a  veto  on 
the  will  of  the  whole. 

"  The  answer  which  has  been  given  to  this  argument  does  not  deny  its  truth,  but 
insists  that  confidence  is  reposed,  and  may  be  safely  reposed,  in  the  State  institutions ; 
and  that,  if  they  shall  ever  become  so  insane  or  so  wicked  as  to  seek  the  destruction  of 
the  government,  they  may  accomplish  their  object  by  refusing  to  perform  the  functions 
assigned  to  tliem. 

"  We  readily  concur  with  the  counsel  for  the  defendant  in  the  declaration  that  the 
cases,  which  have  been  put,  of  direct  legislative  resistance,  for  the  purpose  of  opposing 
the  acknowledged  powers  of  the  government,  are  extreme  cases,  and  in  the  hope  that 
they  will  never  occcur  ;  but  we  cannot  help  believing  that  a  general  conviction  of  the 
total  incapacity  of  the  government  to  protect  itself  and  its  laws  in  such  cases  would 
contribute  in  no  inconsiderable  degree  to  their  occurrence. 

*'  Let  it  be  admitted  that  the  cases  which  have  been  put  are  extreme  and  improbable, 
yet  there  are  gradations  of  opposition  to  the  laws,  far  short  of  those  cases,  which  might 
have  a  baneful  influence  on  the  affairs  of  the  nation.  Different  States  may  entertain 
different  opinions  on  the  true  construction  of  the  constitutional  powers  of  Congress.  We 
know  that  at  one  time  the  assumption  of  the  debts  contracted  by  the  several  States  dur- 
ing the  war  of  our  Revolution  was  deemed  unconstitutional  by  some  of  them.  We 
know,  too,  that  at  other  times  certain  taxes  imposed  by  Congress  have  been  pronounced 
unconstitutional.  Other  laws  have  been  questioned  partially,  while  they  were  supported 
by  the  great  majority  of  the  American  people.  We  have  no  assurance  that  we  shall  be 
less  divided  than  we  have  been.  States  may  legislate  in  conformity  to  their  opinions, 
and  may  enforce  those  opinions  by  penalties.  It  would  be  hazarding  too  much  to  assert 
that  the  judicatures  of  the  States  will  be  exempt  from  the  prejudices  by  which  the  legis- 
latures and  people  are  influenced,  and  will  constitute  perfectly  impartial  tribunals.  In 
many  States  the  judges  are  dependent  for  office  and  for  salary  on  the  will  of  the  legisla- 
ture. The  Constitution  of  the  United  States  furnishes  no  security  against  the  universal 
adoption  of  this  principle.  When  we  observe  the  importance  which  that  Constitution 
attaches  to  the  independence  of  judges,  we  are  the  less  inclined  to  suppose  that  it  can 
have  intended  to  leave  these  constitutional  questions  to  tribunals,  where  this  indepen- 
dence may  not  exist,  in  all  cases  where  a  State  shall  prosecute  an  individual  who  claims 
the  protection  of  an  act  of  Congress.  These  prosecutions  may  take  place  even  without 
a  legislative  act.  A  person,  making  a  seizure  under  an  act  of  Congress,  may  be  indicted 
as  a  trespasser  if  force  has  been  employed,  and  of  this  a  jury  may  judge.  How  exten- 
sive may  be  the  mischief  if  the  first  decision  in  such  cases  should  be  final ! 

"  These  collisions  may  take  place  in  times  of  no  extraordinary  commotion.  But  a 
constitution  is  framed  for  ages  to  come,  and  is  designed  to  approach  immortality,  as 
nearly  as  human  institutions  can  approach  it.  Its  course  cannot  always  be  tranquil.  It 
is  exposed  to  storms  and  tempests,  and  its  framers  must  be  unwise  statesmen  indeed,  if 
they  have  not  provided  it,  as  far  as  its  nature  will  permit,  with  the  means  of  self-preser- 
vation from  the  perils  it  may  be  destined  to  encounter.  No  government  ought  to  be  so 
defective  in  its  organization  as  not  to  contain  within  itself  the  means  of  securing  the 
execution  of  its  own  laws  against  other  dangers  than  those  which  occur  every  day. 
Courts  of  justice  are  the  means  most  usually  employed;  and  it  is  reasonable  to  expect. 


286  CONSTITUTION  OF  THE  UNITED  STATES.      [BOOK  HI. 

on  the  part  of  the  government  of  the  United  States  or  its  func- 
tionaries, and  any  power  exercised  by  them  not  warranted  by  its 

that  a  government  should  repose  on  its  own  courts  rather  than  on  others.  There  is 
certainly  nothing  in  the  circumstances  under  which  our  Constitution  was  formed,  noth- 
ing in  the  history  of  the  times,  which  would  justify  the  opinion,  that  the  confidence  re- 
posed in  the  States  was  so  implicit  as  to  leave  m  them  and  their  tribunals  the  power  of 
resisting  or  defeating,  in  the  form  of  law,  the  legitimate  measures  of  the  Union.  The 
requisitions  of  Congress,  under  the  confederation,  were  as  constitutionally  obligatory  as 
the  laws  enacted  by  the  present  Congress.  That  they  were  habitually  disregarded,  is  a 
fact  of  universal  notoriety.  With  the  knowledge  of  this  fact,  and  under  its  full  pressure, 
a  convention  was  assembled  to  change  the  system.  Is  it  so  improbable  that  they  should 
confer  on  the  judicial  department  the  power  of  construing  the  Constitution  and  laws  of 
the  Union  in  every  case,  in  the  last  resort,  and  of  preserving  them  from  all  violation 
from  every  quarter,  so  far  as  judicial  decisions  can  preserve  them,  that  this  improbabil- 
ity should  essentially  affect  the  construction  of  the  new  system  ?  We  are  told,  and  we 
are  truly  told,  that  the  great  change  which  is  to  give  efficacy  to  the  present  system  is  its 
ability  to  act  on  individuals  directly,  instead  of  acting  through  the  instrumentality  of 
State  governments.  But  ought  not  this  ability,  in  reason  and  sound  policy,  to  be  applied 
directly  to  the  protection  of  individuals  employed  in  the  execution  of  the  laws,  as  well 
as  to  their  coercion?  Your  laws  reach  the  individual  without  the  aid  of  any  other 
power ;  why  may  they  not  protect  him  from  punishment  for  performing  his  duty  in 
executing  them  ? 

"  The  counsel  for  Virginia  endeavor  to  obviate  the  force  of  these  arguments  by  say- 
ing that  the  dangers  they  suggest,  if  not  imaginary,  are  inevitable  ;  that  the  Constitu- 
tion can